会计代写|BSB50807 International Business

Assume that you are the foreign trade minister of $\mathrm{Z}$, a developing country that has a host of serious economic and social problems. You are the leader of a group of developing countries that will attend a world economic summit with a group of advanced industrialized countries. At the summit, you will give a speech arguing that historical events have created a moral duty on the part of developed nations and their MNEs to provide financial assistance and compensation to developing countries. The second part of your argument is that developing nations should be exempt from stringent international environmental controls on industry and from intellectual property laws. As trade minister, can you make these arguments on behalf of the developing nations? Now assume you are the leader of a developed nation that is home to powerful MNEs. How do you respond?

To test your understanding of these concepts and to emphasize that a single IBT can be subject to many different sources and types of law, can you explain how a single IBT, such as an international transaction for the sale of goods involving a sales contract, export compliance, and import clearance issues, can involve:
(1a) a private international law analysis?
(1b) a public international law that deals with private law issues?
(2a) a domestic law that deals with private law issues?
(2b) a domestic law that deals with public law issues?

A successful Ohio law firm uses a standard form for its domestic sales contracts. The form has a choice of law clause choosing Ohio law. The law firm has been retained by a client that wishes to sell sophisticated equipment to be adapted for use in Argentina. The law firm has represented the client in the past in its domestic transactions quite successfully through the use of its standard contracts. The law firm is considering adopting the standard sales contract to the international sale and retaining the choice of law clause stipulating Ohio law. The law firm believes that rather than subjecting the transaction to the various sources of law governing IBTs, the law firm would simply retain its choice of law clause and avoid the complexities of applying unfamiliar sources of law. The lawyers in the firm are familiar with Ohio law and would save the client the expense involved in having the firm’s lawyers research Argentine law or international law applicable to the contract. Do you see any problems with this approach? Consider the following:
(1) Assume that Argentine law does not have the same types of implied warranties that are contained under the Ohio Uniform Commercial Code such as an implied warranty of fitness. How does this affect your answer?
(2) Both the United States and Argentina are parties to the Convention on Contracts for the International Sale of Goods. The CISG allows parties to opt out in favor of another law, including domestic law. Assume that the choice of law clause in the law firm’s standard contract is sufficient to opt out of the CISG. How would you advise the Ohio law firm in light of the following discussion of whether a lawyer involved in an international contract needs to be aware of the CISG:
The duty of competence set forth in Model Rule 1.1 clearly requires of a lawyer “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Any lawyer involved in the negotiation or litigation of a contract for which the parties have their places of business in different countries has a duty to determine [whether the Convention applies.] If the lawyer determines that the [CISG] applies to the transaction, he or she then has a duty to understand fully the rules of the [CISG] and the application of those rules to the transaction. If the representation is in the context of negotiations, the lawyer is also responsible for determining and advising the client whether exercising the Article 6 possibility of “opting out” of the CISG rules would be to the benefit of the client. If the representation is in the context of litigation, the lawyer clearly has an obligation to know (1) whether the Convention applies to the transaction in question, and (2) if it does, the impact on his or her client of application of the Convention rules.

Ronald A. Brand, Professional Responsibility in a Transnational Transactions Practice, 17 J.L. \& Com. 301, 335-336 (1998).

A, an Illinois company, has entered into a contract to sell goods to $\mathrm{B}$, a German company. Both the United States and Germany are contracting parties to the CISG. Article 1 of the CISG provides that “this Convention applies to contracts of sale of goods between parties whose places are in different States when the States are Contracting States.” Article 6 of the CISG further provides, “The parties may exclude the application of this Convention or derogate from or vary the effect of any of its provisions.” Suppose that the contract has a choice of law clause that provides, “This contract is to be governed exclusively by the laws of Illinois.” A brings a lawsuit in an Illinois state court on the contract.
(1) Should the Illinois court apply Illinois state law, German law, the CISG, or some other law? See Asante Technologies, Inc. v. PMC-Sierra, Inc., 164 F. Supp. 2d 1142, 1150 (N.D. Cal. 2001) (a choice of law provision selecting British Columbia law did not, without more, “evince a clear intent to opt out of the CISG. Defendant’s choice of applicable law adopts the law of British Columbia, and it is undisputed that the CISG is the law of British Columbia”). See also Ajax Tool Works, Inc. v. Can-Eng Manufacturing Ltd., 2003 WL 223187, at *3 (N.D. Ill. 2003) “The parties’ contract states that the ‘agreement shall be governed by the laws of the Province of Ontario, Canada.’ Obviously, this clause does not exclude the CISG.”); St. Paul Guardian Ins. Co. v. Neuromed Medical Systems \& Support, GmbH, 2002 WL 465312, at *3 (S.D.N.Y. 2002) (the CISG applies “[w]here parties, as here, designate a choice of law clause in their contract – selecting the law of a Contracting State without expressly excluding application of the CISG. To hold otherwise would undermine the objectives of the Convention which Germany has agreed to uphold.”).
(2) How would you draft the choice of law clause to exclude the CISG?
(3) Is the CISG a self-executing treaty that has direct effect within U.S. courts or must the Illinois court look to domestic implementing legislation?