【正文】 l issues (military, ideology, etc.) 6. payment and delivery issues 7. risks a. culture b. litigation d. parties: un/familiarity d. shipping: loss/damage e. insurance f. import/export regimes g. politics: instability/expropriation e. Licensing Agreements specific concerns 1. intellectual property protections provided by other country 2. quality of manufactured goods (control) 3. appropriateness for market 4. approval process (getting patent protections overseas) 5. royalty issues 6. enforcement of licensing contract a. what law applies? b. forum where litigation occurs? c. alternatives? (mediation, conciliation, arbitration) f. FDI specific concerns 1. local legal restrictions a. requirements for local control/ownership b. training issues c. termination restrictions d. repatriation of profits e. import restrictions f. termination (future petitors) 2. local level of skill 3. evenness of development N/S concerns a. access to markets b. creation of local elites 4. economic concerns g. General List of Central Concerns in IBT’s 1. transportation (COGSA, INCOTERMS) 2. Choice of Law (CISG, UCC, State law, fx law)(extraterritoriality) 3. Payment/Delivery a. form: currency (convertibility。 or b. where one party is a signatory and rules of private international law (conventional choice of law analysis) suggests application of the Convention () c. even if CISG applies, may need to undergo choice of law analysis: if one country not a signatory。 where substantive policy goals would be frustrated (?) 3. Note: US is not bound by It has made an Article 95 reservation (worries about overbroad application of CISG and uncertainty of conventional choice of law analysis) 4. CISG DOES NOT APPLY TO a. consumer goods b. products liability c. securities d. aircraft e. ships f. other things dealt with on in idiosyncratic basis 5. Place of business: location of parties。 even nonsignatories can choose to apply as a matter of private international law 7. Criticism in Contract formation context: if goal is uniformity then why such a subjective approach: 1. Article 8: Contract formed when a. intent to be bound subjective approach b. reasonable person under relevant circumstances would understand themselves to be bound modified objective approach 2. Article 14: Proposal is a k if sufficiently definite (goods, q, price) and indicates intent to be bound Export Sales Transactions Choice of Law Generally (CISG) 5 8. IF NO LAW SELECTED, HOW WILL A US COURT GO ABOUT MAKING THE CHOICE OF LAW? a. Is there a conflict? Do fx law differ substantially on a particular issue? b. CISG if both countries are signatories c. US Conflict/Contract Principles 1. 167。188: factors specific to k formation context a. forum w/ most significant relation to k b. place of k’ing (last act necessary), negotiation, performance, subject matter of k, domicile of parties 3. 167。 breakdown and disaggregate risks more rationally and efficiently。port of shipment187。port of shipment187。port of destination187。 procures minimum insurance on behalf of buyer 2. buyer beneficiary of insurance policy 6. Example: Is payment in a cif contract 1) against documents or 2) after buyer has opportunity to inspect goods? Answer: against docs: a. Biddell Bros. v. E. Clemens Horst Co (UK 1911) 1. cif dn imply a right of inspection (could’ve been put separately in k) or gotten an inspection certificate 2. constructive delivery upon tender of docs 3. transport to port of shipment is enough under cif for tender (b/c goods insured to destination) Bill of Lading 7 c. Transportation and Delivery: Bill of Lading 1. Multipurpose a. as a document of title。 can be used to pledge security on a debt b. as a contract for carriage: agreement to ship goods) c. as a receipt: id’s goods with particularity d. as a k for bailment: carrier accepts possession of goods and agrees to deliver 2. Where they fit in process: a. seller gives goods to carrier b. carrier gives b/l to seller c. carrier delivers goods d. seller submits b/l to buyer (w/ draft) for payment 3. Distinctions and Definitions a. negotiable/order bill: to order of X and their assigns。 made extra useful (esp. in l/c context)。 goods locked up w/ bill b. straight bill: deliver to a specific buyer, regardless of who has a specific piece of paper。 to be negotiable b/l must be 1. to order 2. in transit (ie. must be transferable goods。 b/l docs are also a k for bailment insuring that carrier will tender to a certain person entitled to take possession 3. with good title c. 167。90: When will carrier be liable for deliver to person not entitled: even if delivered under 2 or 3 above will still be liable if: 1. was requested to not deliver by someone w/ right 2. knew that person was not entitled e. If b/l is stolen, how is carrier protected?: 1. if delivers to thief (w/o knowledge) not liable will often require true owner to sue him order to pel delivery to him 2. if delivers to true owner not liable f. what about distinction between times when b/l does pass title and when it doesn’t? 1. passes title: when b/l issued to someone who acquired goods by fraud=holder in due course will have title (and defrauded true owner will have to sue defrauder) Bill of Lading 8 2. does not pass title: when b/l issued by someone who acquired by theft=holder in due course has no c/a (and will have to sue defrauder) COGSA 9 g. Carrier’s Liability for Safe Carriage of Goods: COGSA 1. history: try to balance shipping interests (dev’d world) (look for someone to be liable at least where there’s been negligence) and shipper interests (dev’g countries) (to abso