International Business Transactions Outline
The Basics
1)Note about practicing international transactions work:
a)Not about winning for your client in the short term
b)A rational allocation of risk will assure your client repeat business, make everyone happy over the long term
2)What makes an international transaction different?
a)Different legal systems
i)Which law is applicable (choice of law)
b)Different currency
c)How is payment made
i)In Germany, normal that payee gives out account information
d)Language barrier
i)“normative clause” says which language prevails when there is a divergence
e)system of dispute resolution
i)forum shopping is a major issue in international transactions
ii)usually the forum is made clear
iii)Apple v. Samsung – Korean or US courts prevail in IP dispute?
f)Deal with tariffs and import controls
i)Protects domestic industry
ii)Raises revenue
g)Deal with export controls
i)22 technologies require extensive approval process from commerce dept before exporting
h)shipping
International Sale of Goods
The Letter of Credit Transaction
1)Glossary of terms
a)RFQ – “Request For Quotation”
b)Proforma Invoice (formal, comprehensive invoice)
i)Includes cost per good, total cost (including shipping and shipment terms (e.g. CIF, FOB, etc . . .)), and payment terms (LOC, 30 days, etc)
c)Shipment terms (published by ICC):
i)FOB (Free On Board)
(1)Seller is obligated to have the goods packaged and ready for shipment from…
(a)“place of shipment” S puts carrier in possession
(i)this is default (if contract just says FOB)
(b)“place of destination” S must tender delivery in manner provided by the UCC.
(c)“vessel”
(i)in addition to other duties, must actually put goods on board vessel
(ii)vessel must be named
(2)always a non-negotiable bill of lading?
(3)Buyer covers insurance, figures out how goods shipped and from where
(a)Makes sense, this scheme puts buyer in most control, most responsibilities
(4)Payment due on delivery, which is typically on the vessel
ii)FAS (Free Along Side)
(1)S is responsible to deliver goods to “side” of vessel. Once loading begins, off the hook (unique to waterborn shipments)
iii)C&F (Cost and Freight)
(1)Seller pays for shipping, but not insurance
(2)Refers to delivery contract, not shipment
iv)CIF (Cost, Insurance and Freight)
(1)seller will bear the cost of shipping and insurance up to the designation
(a)IE all FOB stuff but also arranging all shipping and insurance to reach designation, perhaps not just a port
(2)typically seen as “CIF Bath, UK”
(3)MUST use an order (“negotiable”) BOL (find where this is in supplement)
(a)Buyer has total right to transfer his right to the goods
(4)BOL is equivalent to the goods
(a)Delivery of BOL can be treated as delivery of the goods
(b)Effectively no right of inspection
(c)Under UCC, you waive right to inspect when terms are payment against documents
(5)When must buyer pay?
(a)B1, INCOTERMS – based on the contract
(b)Payment term is usually “pay against documents”
(c)Usual rule is that bank gives buyer 3-5 days from when it gets the paper to pay them
PracAp: If seller given more duties (insurance, ect) he’s likely to pass that onto buyer. FOB is more common between parties who know/trust each other (parent/sub, ect).
d)PO – “Purchase Order”
i)Final order stating all relevant terms
ii)Will lead to battle of the forms if doesn’t match OA
e)OA – “Order Acknowledgment”
f)LoC – “Letter of Credit”
i)Promise from Issuing Bank (buyer’s), drawn in favor of the beneficiary (seller), to pay to Seller’s Bank (SB), upon presentation of conforming documents
(1)usually includes a sight draft
g)Sight Draft
i)A “check-like” instrument ordering IB to pay Seller upon docs presentation.
ii)Usually is negotiable and signed over by S to SB, and then forwarded to IB with Neg. BOL for payment
h)BoL – “Bill of Lading”
i)K for shipment of goods btwn carrier and either buyer or seller
ii)“Negotiable” (a.k.a. “order”).
(1)This is the default for unlabeled BoL’s
(2)K with carrier.
(3)Receipt for goods issued by carrier.
(4)A document of title for the goods. Person in possession of BOL, if properly indorsed (or blank) is title.
(5)Carrier must receive BOL to release goods.
iii)“Non-negotiable” (a.k.a. “straight”).
(1)Consignee has rights to goods.
(2)Not title.
(3)Must be labeled as such (BoL not presumed “straight”)
iv)“On Board”
(1)issued once goods on vessel
v)“Clean”
(1)Nothing on it indicating discrepancy regarding goods or their condition
The Normal Transaction
1)Negotiation
a)Buyer sends RFQ
b)Seller sends Pro Forma invoice response
c)Buyer sends Purchase Order
d)Seller sends Order Acknowledgement
2)Performance
a)Buyer has their bank issue LoC to seller’s bank
i)Normally buyer will say who seller’s bank is
b)Seller delivers the goods to carrier, gets BoL
i)If negotiable, can be endorsed to anyone, seller likely still on hook to buyer
(1)Goods not delivered till buyer gets BoL
ii)If non-negotiable, seller entitled to payment at this point
(1)Buyer will get the goods no matter what if BoL just says “buyer” and doesn’t require “holder of BoL in due course”?
(2)Seller usually required to notify buyer that delivery made under the contract
c)Seller sells BoL to seller’s bank, exchanges the documents for credit
i)Documents required:
(1)Bill of Lading
(2)Insurance
(3)Packing list
(4)Certificate of origin
(5)Online electronic export info
(6)Commercial invoice
ii)Seller has right to payment from seller’s bank, buyer’s bank, buyer, or US Gov
d)Seller’s bank sells BoL to buyer’s bank
e)Buyer’s bank sells BoL to buyer
f)Holder presents BoL to carrier at destination, gets the goods
i)Buyer obligated to inspect goods – Art. 38
(1)Must give notice of defect within reasonable time – Art. 39
ii)If says “freight collect”, can’t collect until freight paid
PracApp:
- What has to happen for seller to lose out?
- Buyer stiffs, buyer’s bank fails, and seller’s bank fails
- US Gov has to fail – insured up to $100,000 under USDIC
- What has to happen for buyer to lose out?
- Only if they don’t get a chance to inspect the goods and they don’t conform
- What has to happen for buyer’s bank to lose out?
- If buyer goes bankrupt
- Buyer’s bank in good position to evaluate this risk
- Might protect themselves by requiring collateral or a co-signer
Contract Formation
1)Choice of Law
a)Note: a forum will always apply its own choice of law rules
b)US Choice of Law Principles
i)Agreement of the parties usually controls?
ii)CISG if both parties are contracting states (U.S. Article 95 reservation)
(1)Supercedes UCC where applicable (supremacy clause)
(2)Applies to…
(a)K where parties are from different states
(i)If party location uncertain, one bearing closest relation to K counts
(3)Partial or complete derogation is permissible
(a)However, must be clear/explicit, not ambiguous
(4)Enumerated exclusions:
(a)Goods for personal or family use, Art. 2(a), unless seller neither knew nor should have known.
(b)Intangibles (e.g. securities, IP, rights, etc . . . )
(c)Information, Probably covered if on physical media.
(d)Services – Test is whether “preponderant part of the obligations of he party who furnishes the goods consists of labor or other services.” Art. 3(2).
iii)UCC § 1-105 if other party is not a contracting state to CISG
(1)Parties may choose the law of any State with a “reasonable relation” to the transaction
(a)“reasonable relation” = use, purchase, assembly, ect.
iv)Restatementof Conflicts of Law (Second)
(1)Used as a guide by courts?
(2)local law of state having “the most significant relationship to transaction and parties.” § 188(1)
(3)Relevant factors are location of…
(a)Contracting
(b)Negotiation
(c)Performance
v)For shipping K’s
(1)COGSA governs carrier related disputes
c)Europe Choice of Law Principles (Rome Convention)
i)Article 3 – the choice of the parties usually governs
ii)Article 4 – if no law is chosen:
(1)Contract for sale of goods governed by law of country where seller has habitual residence (seller default)
(a)Promotes seller certainty, more sales
(2)Contract for provision of services governed by the law of the country where the service provider has his/her habitual residence
iii)Characteristic Performance Presumption
(1)Default is country of closest connection is where the party to affect characteristic performance has its habitual residence
(2)Normally, seller’s law will prevail.
(a)Judgment that sellers best able to protect themselves
(b)More seller-centric than UCC § 1-105
(3)For shipping K’s, country is…
(a)Carrier’s PPOB, or
(b)Country of loading, or
(c)Country of discharge, or
(d)PPOB of consignor.
2)Forum selection:
a)United States
i)Virtually any forum selection clause will be accepted by the court so long as not “unreasonable or unjust.” Bremen
(1)Also cite Carnival Cruise Lines
b)Europe – Brussells Convention
i)Contracting parties may choose the courts of any of their States as forum so long as written in agreement. Art. 17.
c)Shipping K’s
i)Europe = Brussels Convention
(1)Unclear if COGSA is mandatory?
ii)U.S. – Any forum can be chosen which doesn’t reduce carrier liability (Fireman’s Fund)
(1)However, parties may choose forum hostile to COGSA, won’t hold carriers liable.
d)Arbitral awards (come back to this)
3)Battle of the forms
a)CISG
i)Offer requirements.
(1)It must be a proposal for concluding a K. Art. 14.
(2)Intention to be bound. Art. 14
(3)Sufficiently definite offer. Art. 14.
ii)Acceptance
(1)Mirror-Image Analysis. If acceptance differs in any way, it is deemed to be a rejection and counter-offer. Art. 19(1).
(2)EXCEPTION. Difference is immaterial. Art. 19(3).
(3)Silence not usually acceptance. Art. 18. UNLESS result of practices which the parties have established or usage. Id.
iii)Terms
(1)Essentially Mirror Image Rule. Art. 19(1)
(a)Terms must be more or less identical to form a contract
(b)however, change must be “material” to be a rejection/counteroffer
(c)judges have rebelled here (2/3), tend to use knockout rule
(2)Last Shot Principle. If seller ships goods, governing terms are those of the last non-terminated offer. If buyer accepts goods, he accepts terms on order acknowledgement.
(3)Intent relevant. Ct. may look at party’s intent to ascertain if terms are part of K. Art. 8.
(4)No Parole Evidence. Art. 8(3).
b)U.C.C.
i)Acceptance
(1)Acceptance, purporting to be so, is, even if terms differ. UCC § 2-207(1).
(2)If one form prohibits contract on any other terms and other form has additional terms, there is no K.
ii)Validity of Additional Terms. §2-207
(1)First Shot Rule. Are offers for modification, UNLESS b/t merchants and:
(a)Offer expressly prohibits modification, or
(b)Material, or
(c)Notification of objection to terms already given.
iii)Revised § 2-207 uses Knockout Rule.
(1)Ct. can still find K if subsequent conduct affirms acceptance of term. § 2-207(3).
(2)Judges can avoid the battle of the forms and examine parties intent. Filanto.
(3)
c)British
i)Acceptance:
(1)Strict Mirror Image Rule
(2)if anything is different, it is a rejection and counteroffer
ii)terms:
(1)Last shot principle – if seller ships (performs) whoever sent the last offer defines the contract
(a)Incentivizes a lot of back and forth of forms, kind of talking past each other
4)Implied Terms
a)C.I.S.G. (doesn’t call them implied terms).
i)Fitness for Particular Purpose. Art. 35
ii)Merchantability. Art. 35.
iii)Waivable by parties though seemingly more liberally. Art. 35.
iv)Derogation avail. under Art. 6.
b)U.C.C.
i)Merchantability. § 2-314.
ii)Fitness for Particular Purpose if seller knows or has reason to know buyer is relying on its representations. § 2-315.
iii)Disclaiming. § 2-316
(1)Conspicuous language using specific words (e.g. “as is”).
(2)Course of dealing.
(3)Full opportunity to inspect and no latent defects.
PracApp:
- You HAVE TO understand CISG to negotiate contract, never guaranteed that it won’t apply
- How can you minimize risk to the client?
- Constantly sending forms to win last shot rule is risky, inadvisable
- Have the buyer test the goods or test them yourself
- Good idea for client to look up what standards apply abroad and test the product under those conditions
- To avoid consequential damages, really bargain, understand what’s at stake for the other side
- Above all, maintain the business relationship, don’t just try to win
Impossibility/Impracticability/Excuse
1)CISG
a)Art 79(1) – No liability if
i)[complete] non-performance results from…
(1)Impediment…
(2)Beyond his control…
(3)And he could not reasonably be expected to account for it in K
ii)And pary gives timely notice, Art 79(4)
b)Frustration is not a defense
c)Art 79(2) – If a third party is responsible for non-performance, party not exempt unless
i)Party already exempt under (1) OR
ii)Third party would be exempt under (1)
d)Excuse is presumed not to be permanent
i)May be exception if K and/or drafting history suggests otherwise
e)Damages:
i)Cover Damages. CISG Art. 75. Substantially similar to UCC
ii)Market Damages. Gets difference in market price and K price at time of avoidance, if doesn’t purchase substitute.
2)Anglo-American Approach
a)UCC § 2-615 – Excuses
i)Seller (and only seller) excused IF
(1)seller hasn’t assumed risk
(2)excuse is for failure or delay in delivery
(3)performance is made commercially impracticable by:
(a)the occurrence of a contingency “the non-occurrence of which was a basic assumption on which the contract was made, OR
(b)by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.
ii)Applies only to seller.
b)Frustration (UK rule) – if due to unprovided-for circumstance, a situation changes sufficiently that it would be unjust to hold party accountable, then the contact is at an end.
i)The Eugenia (Ct. of App. 1963)(holding seller in violation of K when it took ship through Suez Canal despite blockage rather than taking circuitous route which would add 30% time. Ct. held add’l time not sufficiently different.
c)U.S. Damages are cover damages.
i)Calculated as difference between K price and market price at time of delivery (i.e. when title changes).
ii)Buyer may “without unreasonable delay” purchase substitute and cover. Buyer can recover difference b/t that and amt. paid. UCC § 2-712.
3)Civil Law Jurisdictions (generally)
a)Similarities to common law:
i)Occurrence of an event after the making of contract
ii)Exceptionality and unforeseeability of event
iii)Alteration of contract to intolerable degree
iv)No fault on obligor’s part
b)Differences:
i)Generally less willing to excuse performance
(1)Germany prefers modifying K
(2)France has extremely high threshold (“absolute” impossibility)
4)UNIDROIT
a)Force Majeure excuses performance if impediment…
i)Is beyond party’s control AND
ii)party could not reasonably have taken into account, OR avoided
b)Hardship authorizes K renegotiation or court modification where occurrence of events “fundamentally altering” the equilibrium of the contract either b/c cost has increased or value received has decreased.
i)50% or more change in price or value might be enough.
PracApp:
- universally, a simple rise in price almost never excuses performance
- look for contractual language that specifies the source or exact composition of the product
- IE does contract for oil require Araby-sourced oil? Can replace on spot market?
- Strengthens the case for excuse if so
- Renegotiation is the norm internationally because force majure signals complete breakdown in relationship
- IE there will be no repeat business
- How does a middleman protect himself vis a vis his obligor to provide and his obligee he delivers to?
- One method: line up the excuse clauses in your contracts
- write supplier contract that says supplier has to deliver oil no matter what, not necessarily from their refinery
- Supplier probably won’t agree to it, makes them broker with no premium
- Write obligee contract to excuse you if refinery burns down
- Probably won’t accept this, damage relatiohship
- Better method: buy futures on product you must provide (insurance by another name)
- If your supplier fails, you have the right to buy replacements at a price that won’t ruin you
5)Carrier Liability
a)Hague Rules apply to contracting states, even if not implemented
i)US implemented as COGSA
(1)Carrier liability limited to $500 per package UNLESS shipper declares value on BOL.
(2)Limitation narrowly construed.
(a)Carrier misrepresenting count may not invoke $500 limitation. (Berisford Metals Corp. v. S/S Salvador) (carrier couldn’t invoke limitation when it erroneously wrote 100 bundles of tin ingots instead of actual 30 where 70 disappeared while stored in dock and carrier could have noticed discrepancy).
ii)Clean Bill of Lading creates prima facie presumption that goods are as described.
(1)Carriers can still avoid liability if they state “Shipper’s load and count” or “particulars furnished by shipper.”
(2)Of course, this creates an unclean BOL which is frequently unacceptable to consignee.
Commercial terms, BoL, Insurance
1)Bill of Lading
a)Hague rules – ("International Convention for the Unification of Certain Rules of Law relating to Bills of Lading") – 1924
i)Requires carriers take on at least $500 in liability
(1)Most countries raised this, US hasn’t
ii)Limited instances where carrier is liable
b)Rotterdam Rules
i)Recently negotiated, haven’t been put into effect
c)Federal Bills of Lading Act (FBLA)
i)Warranties and Liability. 49 U.S.C. § 80107.
(1)Unless contrary intention appears, person negotiating or transferring BOL warrants that
(a)BOL is genuine
(b)He or she has right to transfer
(c)He or she is unaware of any fact affecting validity or worth
(d)Goods are merchantable or fit for particular purpose if that would have been implied absent a BOL.
* This encourages people to know their endorser *
(2)Shipper liable if passes off duplicate as original.
(3)Endorser not liable for prior false endorsements.
ii)Duty to Deliver. 49 U.S.C. § 80110.
(1)Carrier must deliver to consignee or holder of BOL.
(2)Carrier may deliver to
(a)Consignee.
(b)Holder. Carrier is liable if BOL is fraudulently indorsed.
(3)Carrier may retain goods while investigating multiple claims.
iii)Carrier liability for misdirection
(1)Liable for non-receipt and mis-description UNLESS
(a)Uses words “Shippers weight, load and count” or almost exactly similar on BOL. 49 U.S.C. § 80113, AND
(i)“Particulars furnished by shipper” not necessarily sufficient, so best to use exact terms. (Industria Nacional)
(ii)Must indicate that shipper loaded. (Industria Nacional)
(b)Carrier wasn’t aware of non-conformity.
(2)Carrier liable for kind, quantity and weight for bulk freight where shipper makes adequate facilities available to carrier.
(3)Carrier has duty to count packages if package freight.
(4)Carrier has duty to determine kind and quantity for bulk freight.
iv)Carrier liability for forgery