International commercial law [Sixth edition.] 9780409341577, 0409341576

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International Commercial Law Sixth edition

John Shijian Mo LLB (Jilin, China), LLB (Mon), LLM (Dalhousie), PhD (Syd) Chair Professor, Dean of Faculty of Law, University of Macau, Adjunct Professor of China University of Political Science and Law, Beijing Titular Member of International Academy of Comparative Law (The Hague), Vice-President of China Society of International Economic Law, Vice-President of China Association for International Economic and Trade Law Studies Arbitrator of the China International Economic and Trade Arbitration Commission (CIETAC), Arbitrator of the China Maritime Arbitration Commission (CMAC), Arbitrator of the Cairo Regional Center for International Commercial Arbitration (CRCICA), Arbitrator of the Arbitration Foundation of Southern Africa (AFSA), Advisor for ForeignRelated Commercial and Maritime Trials, appointed by the National Supreme Court of China (2015–2018)

LexisNexis Butterworths Australia 2015

In memory of my father and mother whose everlasting love is the real treasure that will be passed on to my son and daughters

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LexisNexis, Miamisburg, OHIO National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Notes: Subjects: Dewey Number:

Mo, John Shijian. International Commercial Law. 6th edition. 9780409341560 (pbk). 9780409341577 (ebk). Includes index. Commercial law. International law. 341.754.

© 2015 Reed International Books Australia Pty Limited trading as LexisNexis. 1st edition, 1996; 2nd edition, 2000; 3rd edition, 2003; 4th edition, 2009; 5th edition, 2013. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specifi c written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Janson Text and Futura. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface International commercial law is an area of law that is constantly changing. Updating the previous edition is a challenging task, but it has saved me from falling behind in this rapidly growing area of law. I have managed, under friendly and gentle pressure, as well as with the invaluable and efficient support of the editorial team of the publisher, to complete this new edition according to schedule. In the past 10 or so years, technological developments in and around the internet have had some significant impacts upon our lives. The explosion of data flow via the internet, crowd-funding online, ecommerce and e-banking across borders, and the use of cameras and other monitoring devices have not only changed our lives substantially, but also created numerous new commercial and business opportunities and models, while creating constant all-round challenges to our existing systems of law, which are always lagging behind in almost all jurisdictions, including, of course, this branch of law known as ‘international commercial law’. Thanks to the wisdom of our legal studies predecessors, legal practice has developed a set of useful rules or tools, which can often be reassembled and redesigned legally, righteously and conveniently, if not ‘manipulated’ delicately and skillfully, according to the perceived vision of the advocator of justice or the law enforcement mechanism, to meet in one way or another the challenges of everyday life. The ability of the existing norms of law to provide infinite solutions to countless challenges does not necessarily mean that the solutions are always satisfactory to all parties. However, solutions in one way or another achieve some order and harmony in present human society, which is in perpetual development, both known and unknown, to most of

its members, depending on who they are and where they are in their lives. In brief, like most domestic laws, international commercial law has not provided many new rules that respond to the challenges raised by new technologies and new business models. Instead, solutions are found largely through innovative reading and reshaping of present rules of law. Good or bad, this is the way in which the optimal norms of human behaviours, the rule of law, work in reality. At the same time, the author hopes that human intelligence will respond more productively to the challenges posed by new technologies, and produce more pertinent and adequate rules that meet such challenges to demonstrate that lawyers are no less creative than scientists and business people. The author wishes to sincerely thank the publisher’s editorial and administrative staff for their patience, cooperation and support in the revision of this edition. Without their valuable contributions it would not have been possible for the author to complete this edition on time. My thanks and gratitude also go to each member of my family: Catherine, Benjamin, Isabel and Wendy. Together you have taught me the full meaning of life.

Table of Cases References are to paragraphs; bold references are extracted cases

A Abidin Daver, The [1984] AC 398 …. 9.77 Abnett v British Airways Plc (Scotland); Sidhu v British Airways Plc (1996, House of Lords, unreported) …. 3.253, 3.254, 3.302 A C Harper and Co Ltd v Mackechnie and Co [1925] 2 KB 423 …. 5.61 Accinanto Ltd v A/S Ludwig Mowinckels [1951] 2 Lloyd’s List Law Reports 285 …. 3.93, 3.112, 3.116 Actis Co v Sanko Steamship Co (The ‘Aquacharm’) [1982] 1 WLR 119 …. 3.110 Adhiguna Meranti, The [1987] 2 HKC 126 …. 9.137 Adler v Dickson (Himalaya clause case) [1955] 1 QB 158 …. 3.141 Adriano Gardella SpA v The Government of the Republic of the Ivory Coast (1993) ICSID Reports 283 …. 6.91 A-G v Times Newspapers [1974] AC 273 …. 9.236 AGIP v Congo (1993) ICSID Reports 306 …. 6.90, 6.91 Agro Air Association Inc v Houston Casualty Company (No 95-5223, 21 November 1997, US Ct of App for 11th Circuit) …. 5.111

Air Canada v Demond (19 April 1990, Supreme Court of Nova Scotia) …. 3.282 Air Separation v Lloyd’s of London 45 F 3d 288 (1995) …. 5.110 Ajax Tool Works Inc v Can-Eng Manufacturing Ltd 2003 US Dist LEXIS 1306 …. 2.176 — v — (No 01 C 5938, 2003 WL 223187-3, NDIll, 30 January 2003) …. 2.30 Akai Pty Ltd v The People’s Insurance Comp Ltd (23 December 1996, High Court of Australia, unreported) …. 9.14, 9.122 Akefamu Co Ltd v Sinochem Hainan Co Ltd (1997) Hu Gao Jing Zhong Di No 93 …. 2.115 Alaska Packers Association v Industrial Accident Commission 294 US 532 (1935) …. 9.61 Allden v Raven (The ‘Kylie’) [1983] 2 QB 444 …. 5.67, 5.70 Alloys Inc v Fortis Bank SA/NV (US Bankruptcy Court for Northern District of Ohio, CLOUT Abstract 632) …. 2.20 Aluminum and Light Industries v Saint Bernard Miroiterie Vitretie (1312 FS-P, 2003, CISG W3 database) …. 2.113 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 …. 2.275 Amazonia, The [1990] 1 Lloyd’s Rep 236 …. 3.215 Amco Asia Corp v The Republic of Indonesia (1993) ICSID Reports 377 …. 6.91, 9.198 American Airlines Inc v Georgeopoulos (No 2) [1998] NSWSC 463 …. 3.363 American Eagle Insurance Co v John H Thompson (No 95-2672, 28 May 1996, US Court of Appeals for the 8th Circuit) …. 5.132 American Mint (WL 2021248-3, 2005, unreported) …. 2.30

American President Lines Ltd v China Mutual Trading Co Ltd [1953] HKLR 111 …. 3.112 Anders Maersk, The [1986] 1 Lloyd’s Rep 483 …. 3.71, 9.46 Anthony John Sharp and Roarer Investments Ltd v Sphere Drake Insurance Plc, Minster Insurance Co Ltd and EC Parker & Co Ltd (The ‘Moonacre’) [1992] 2 Lloyd’s Rep 501 …. 5.36, 5.38, 5.66, 5.78, 5.93 Antwerp United Diamonds BABV v Air Europe [1995] 2 Lloyd’s Rep 224 …. 3.321 Aotearoa International Ltd v Westpac Banking Corp [1984] 2 NZLR 34 …. 4.125 Apex Oil Co v Belcher Co of New York Inc (1988) 855 F Belcher Co 005 …. 2.182 Apostolos Konstantine Ventouris v Mountain (The ‘Italia Express’) (No 2) [1992] 2 Lloyd’s Rep 281 …. 5.87 Aqualon (UK) Ltd v Vallana Shipping Corp [1994] 1 Lloyd’s Rep 669 …. 3.461, 3.479 Arab Bank Ltd v Ross [1952] 2 QB 216 …. 4.52 Arcos v EA Ronaasen & Son [1933] AC 470 …. 1.78 Aronis v Hallett Brick Industries Ltd [1999] SASC 92 …. 1.14 Asante Technologies, Inc v PMC-Sierra, Inc 164 F Supp 2d 1142, 1151– 1152 (ND Cal 2001) …. 2.6 Ashford Shire Council v Dependable Motor Pty Ltd (1960) 60 SR (NSW) 27 …. 1.80 Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441 …. 1.79, 1.80 Asian Century Holdings Inc v Fleuris Pty Ltd [2000] WASC 169 …. 4.100

Athanasia Comninos, The and Georges Chr Lemos [1990] 1 Lloyd’s Rep 277 …. 3.158 Athens Maritime Enterprises Corp v Hellenic Mutual War Risks Assoc (Bermuda) Ltd (The ‘Andreos Lemos’) [1983] 2 WLR 425 …. 5.44 Atlantic Star v Bona Spes [1974] AC 436 …. 9.77 Atlas Air Australia Pty Ltd v Anti-Dumping Authority (1990) 26 FCR 456; 99 ALR 29 …. 7.46 Audiencia Provincial, Barcelona (20 June 1997, CLOUT Case 210) …. 2.121 Australasian United Steam Navigation Co Ltd v Hiskens (1914) 18 CLR 646 …. 1.64, 3.106, 3.130, 3.137 Australia and New Zealand v France (1973, ICJ, unreported) …. 6.97 Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387 …. 2.103 Australian Shipping Commission v Kooragang Cement Pty Ltd [1988] VR 29 …. 3.137 Ayers Aviation Holdings Inc, Re 2002 Bankr LEXIS 1151 …. 2.20

B Bachmann Pty Ltd v BHP Power New Zealand Ltd [1998] VSCA 40 …. 4.100, 4.101 Bacon v Purcell (1916) 22 CLR 307 …. 2.82 Balmedie Pty Ltd v Nicola Russo [1997] FCA 467 …. 6.19 Bank fur Gemeinwirtschaft v City of London Garages [1971] 1 WLR 149 …. 4.51 Bank Negara Indonesia 1946 v Lariza (Singapore) Private Ltd [1988] 1 Lloyd’s Rep 407 …. 4.110 Bank of India v Gobindram Naraindas Sadhwani [1988] 2 HKLR 262 ….

9.45, 9.120 Bank of Taiwan v Union Syndicate Corp [1981] HKC 205 …. 4.148 Bankers Trust Co v State Bank of India [1991] 2 Lloyd’s Rep 443 …. 4.129 Bankinvest AG v Seabrook (1988) 14 NSWLR 711; 90 ALR 407 …. 9.108, 9.139 Banque de L’Indochine ET de Suez SA v J H Rayne (Mincing Lane) Ltd [1983] QB 711 …. 4.141 Baoli Hotel of Yinhai v Mingyue Special Lighting Company Ltd of Inner Mongolia (1994, People’s Court, Beijing, unreported) …. 1.104 Barbara Berry SA de CV v Ken M Spooner Farms Inc, 2007 WL 4039341 (CA (Wash)) …. 2.7 Barcelona Traction, Light and Power Company; Belgium v Spain [1970] ICJR 4 …. 6.98 Barclays Bank Ltd v Customs and Excise (1963) 11 Lloyd’s Rep 81 …. 3.79 Bartlett v Sydney Maracas Ltd [1965] 2 All ER 753 …. 1.79 Base Construction Corporation (Henan) of China Exported Commodities v Foreign Trade Development Company of Shenzhen (1992, People’s Court, Beijing, unreported) …. 1.105 Bedial, SA v Paul Muggenburg and Co GmbH (31 October 1995, Camara Nacional de Apelaciones en lo Comercial, CLOUT Case 191) …. 2.245 Beijing Metals & Minerals Import/Export Corp v American Business Centre Inc 993 Federal Reports 2d 1178 (1993) …. 2.271 Bell Bros Pty Ltd v Rathbone (1963) 109 CLR 225 …. 1.45 Beluga Shipping GmbH & Co v Headway Shipping Ltd [2008] FCA 1791 …. 3.210

Benevento v Life USA Holding, Inc 61 F Supp 2d 407 (ED Pa1999) …. 9.139 Berdero Price (Malaysia) Sdn Bhd v Scheepvaartonderneming Leidsegracht CV [2000] WASC 263 …. 3.65 Berger & Light Diffusers Pty Ltd v Pollock [1973] 2 Lloyd’s Rep 442 …. 5.57 Berk v Style [1955] 3 All ER 625 …. 5.72 Bernhard Blumenfeld Kommandit Gesellschaft Auf Aktien v Sheaf Steam Shipping Co Ltd (1938) 62 Ll L Rep 175 …. 3.112, 3.113, 3.120 Bezirksgericht St Gallen (3PZ97/18, on 3 July 1997, CLOUT Case 215) …. 2.22 BHP Trading Asia Ltd v Oceaname Shipping Ltd (24 April 1996, Federal Court of Australia, unreported) …. 3.63 Black King Shipping Corp v Massie (The ‘Litsion Pride’) [1985] 1 Lloyd’s Rep 437 …. 5.68 Blooming Orchard, The (No 2) (1991) 22 NSWLR 273 …. 3.215 Bolivinter Oil SA v Chase Manhattan Bank N A [1984] 1 WLR 392; [1984] 1 Lloyd’s Rep 251 …. 4.146, 4.150 Boronia Park Properties Pty Ltd v Arramunda Airway Pty Ltd [1995] NTSC 16 …. 1.2 Bowden Brothers and Co Ltd v Robert Little (1907) 4 CLR 1364 …. 1.35 Boys v Chaplin [1968] 2 QB 1 …. 9.137 BP International Ltd and BP Exploration & Oil Inc v Empressa Estatal Petroleos de Ecuador 332 F 3d 333 …. 2.116 Braber Equipment Ltd v Fraser Surrey Docks Ltd 1999 BCCA 579 …. 3.142 Brandt v Liverpool, Brazil and River Plate Steamship Navigation Co

[1924] 1 KB 575 …. 3.84 Brazil Export Financing Programme for Aircraft (WT/DS46/R, 14 April 1999, WTO, unreported) …. 7.48, 7.49 — (WT/DS46/AB/R, 2 August 1999, WTO Appellate Panel, unreported) …. 7.48 — (WT/DS46/RW/2, 26 July 2001, WTO Panel, unreported) …. 7.48 Breavington v Godleman (1988) 169 CLR 41; 80 ALR 362 …. 9.57, 9.133, 9.136 Bremen, The v Zapata Off-Shore Co (1971) 407 US 1 …. 3.105, 9.56 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 …. 1.11 Brinks Ltd v South African Airways (2 July 1998, United States Court of Appeals for the Second Circuit) …. 3.299 Brown & Root Services Corp v Aerotech Herman Nelson Inc …. 2.210 Brown v Craiks Ltd [1970] 1 All ER 823 …. 1.79 Bundesgerichtshof (VII ZR 18/94, 15 February 1995, CLOUT Case 124) …. 2.153 — (VIII ZR 159/94, 4 March 1995, CLOUT Case 123) …. 2.95 — (VIII ZR 51/95, 3 April 1996, CLOUT Case 171) …. 2.78 — (VIII ZR 306/95, 4 December 1996, CLOUT Case 229) …. 2.121 — (VIII ZR 300/96, 25 June 1997, CLOUT Case 235) …. 2.217 — (VIII ZR 134/96, 23 July 1997, CLOUT Case 236) …. 2.11 — (VIII ZR 130/96, 23 July 1997, CLOUT Case 231) …. 2.267 Burges v Wickham (1863) 3 B & S 669, 122 ER 251 …. 3.98 Burns, Philp and Co Ltd v Gillespie Brothers Pty Ltd (1947) 74 CLR 148 …. 3.112, 3.164

Burrard Towing Co v Reed Stenhouse Ltd (No CA019659, 23 April 1996, BCCA, unreported) …. 5.86

C Cabot Corp v The Mormacscan [1971] 2 Lloyd’s Rep 351 …. 3.30 Calzaturificio Claudia snc v Olivieri Footwear Ltd (1998) US Dist Lexis 4586 …. 1.18, 1.19 Cammell v Sewell (1858) 157 ER 615 …. 9.144 Canada Export Credits and Loan Guarantees for Regional Aircraft (WT/DS222/R, 17 January 2002, WTO Panel, unreported) …. 7.48 — (WT/DS222/R, 28 January 2002, WTO Panel, unreported) …. 7.51 Canada Inc and the Prudential Assurance Co Ltd v Air Canada (4 April 1997, Federal Court of Canada, unreported) …. 3.290 Canada Measures Affecting the Export of Civilian Aircraft (WT/DS70/R, 14 April 1999, WTO Panel, unreported) …. 7.48, 7.49 — (WT/DS70/AB/R, 2 August 1999, WTO Appellate Panel, unreported) …. 7.48, 7.52 Canastrand Industries Ltd v The Ship ‘Lara S’ (1 May 1989, Federal Court of Canada) …. 3.29 Canton of Ticino: Pretore della giurisdizione di Locarno Campagna (27 April 1992, CLOUT Case 55) …. 2.220 Canusa Systems Ltd v The ‘Vessel Canmar Ambassador’ (No T-456-95 FCTD, 16 February 1998, Federal Court of Canada) …. 3.57, 3.479 Cape Asbestos Co Ltd v Lloyd’s Bank Ltd [1921] WN 274 …. 4.91 Carl Hill v Cixi Old Furniture Trade Co Ltd (2001) Cijingchuzi No 560 …. 2.12 Carlos Federspiel & Co SA v Charles Twigg & Co Ltd [1957] 1 Lloyd’s

Rep 240 …. 1.52 Carlos v Fancourt (1794) 5 TR 482 …. 4.39 Carrington Slipways Pty Ltd v Patrick Operations Pty Ltd (1991) 24 NSWLR 745 …. 3.28, 3.54, 3.59, 3.61, 3.100 Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd [2011] FCAFC 55 …. 2.111 Catherwood Towing Ltd v Commercial Union Assurance Co (No CA019997, 17 July 1996, BCCA) …. 5.86 CCR Fishing Ltd v Tomenson Inc (‘La Pointe’) [1989] 2 Lloyd’s Rep 537 …. 5.42 Cedar Petrochemicals Inc v Dongbu Hannong Chemical Co, Ltd (No 06 Civ 3972 (LTS)(JCF), 19 July 2007) …. 2.30 Century Insurance Co of Canada v Case Existological Laboratories [1984] 1 WWR 97 …. 5.41 Certain Cut-to-Length Carbon Steel Plate From Germany: Final Results of Antidumping Duty Administrative Review, 62 Fed. Reg. 18390 (15 April 1997) …. 7.57 Champanhac & Co Ltd v Waller & Co Ltd [1948] 2 All ER 724 …. 1.81 Chaplin v Boys [1971] AC 356 …. 9.57, 9.67, 9.136 Chapman Marine Pty Ltd v Wilhelmsen Lines A/S [1999] FCA 178 …. 3.107, 3.124, 3.129, 3.144 Charles Goodfellow Lumber Sales Ltd v Verreault, Hovington and Verreault Navigation Inc [1971] 1 Lloyd’s Rep 185 …. 3.113, 3.119 Chartwell Shipping Ltd v QNS Paper Co Ltd [1989] 2 SCR 683 …. 3.58 Chateau des Charmes Wines Ltd v Sabat USA Inc, Sabat SA, 328 F 3d 528 …. 2.62 — v Sabate, USA Inc [2005] OJ No 4604 …. 9.84

Cheung Yiu-wing v Blooming Textile Ltd (1977) HKLR 388 …. 4.67 Chicago Prime Packers Inc v Northam Food Trading Co 2003 US Dist LEXIS 9122 …. 2.6 — v — 2005 408 F 3d 894 …. 2.97 China Anti-Dumping and Countervailing Duties on Certain Automobiles from the United States (DS 440, ongoing, WTO Panel, unreported) …. 7.57 China Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States (DS 427, ongoing, WTO Panel, unreported) …. 7.57 China National Metal Products Import Export Company v Apex Digital Inc, 141 F Supp 2d 1013 …. 2.7 China Ocean Shipping Co v PS Chellaram & Co Ltd (1990) 28 NSWLR 354 …. 9.68 China Packaging Import & Export Company Hubei Office v Russia Phoenix Company and Hubei Province Silk Import & Export Company (2002, CISG W3 database) …. 2.11 China-Schindler Co Ltd North Division v Fung Hing Co Ltd (1991) 6 China Law and Practice 1 …. 1.47 China Shanghai Dongda Import & Export Corp v Germany LaubholzMeyer Corp (2002, CISG W3 database) …. 2.118, 2.177 China Yituo Group Company v Germany Gerhard Freyso LTD GmbH & Co KG (1998, CISG W3 database) …. 2.20 Chloride Industrial Batteries Ltd v F W Freight Ltd [1989] 2 Lloyd’s Rep 274 …. 3.457 Claude B Fox Pty Ltd v Raynor [1978] Qd R 250 …. 1.80 Coated Free Sheet Paper from the People’s Republic of China: Amended Preliminary Affirmative Countervailing Duty Determination 72 Fed Reg 17,484 (2007) …. 7.57

Coated Free Sheet Paper from the People’s Republic of China: Final Affirmative Countervailing Duty Determination, 72 Fed. Reg. 60,645 (2007) …. 7.57 Comalco Aluminium Ltd v Mogal Freight Services Pty Ltd (18 March 1993, Federal Court of Australia) …. 3.43 Commercial Trading Co Inc v Hartford Fire Insurance Co [1974] 1 Lloyd’s Rep 179 …. 5.87 Commission v Belgium [1983] ECR 1649 …. 8.22 Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 …. 5.5 Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577 …. 3.215 Compania Maritima Astra, SA v Archdale (The ‘Armar’) [1954] Lloyd’s Rep 95 …. 5.53 Compania Naviera Santi SA v Indemnity Marine Insurance Co (The ‘Tropaiofaros’) [1960] 2 Lloyd’s Rep 469 …. 5.82 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 64 ALR 481 …. 9.16 Confecciones Del Atlantico v Lamont Shipping Inc [1982] HKLR 393 …. 9.146 Consolidated Mining v Straits Towing Ltd [1972] 2 Lloyd’s Rep 497 …. 3.93, 3.112 Consolidated Rutile v China Weal [1998] QSC 170 …. 1.87 Contigroup Companies Inc v Glencore AG [2004] EWHC 2750 …. 1.95 Continental Shipper, The [1976] 2 Lloyd’s Rep 234 …. 3.112 Craig v Association National Insurance Co Ltd (1983) 71 FLR 455 …. 5.89 Crayford Freight Services Ltd v Coral Seatel Navigation Co [1998] FCA 263 …. 3.478

Curl & Curl v Captain Sturt Marine Pty Ltd (1982) ASC 55-190 …. 1.81

D Daddon v Air France (1984) 7 S&B Av R 141 …. 3.363 Daewoo Hong Kong Ltd v Mana Maritime Inc [1997] HKLRD 1264 …. 3.47 Danisches Bettenlager GmbH & Co KG v Forenede Factors A/S (22 January 1996, CLOUT Case 161) …. 2.17 Deaville v Aeroflot Russian International Airlines [1997] 2 Lloyd’s Rep 67 …. 3.304 Delchi Carrier SpA v Rotorex Corp 1994 US Dist Lexis 12829 (9 September 1994, CLOUT Case 85) …. 2.234 — v —1995 10 Federal Reporter (3rd series) 1024 …. 2.176 — v —1995 71 F 3d 1024 …. 2.67, 2.179 Demby Hamilton Ltd v Barden [1949] WN 73 …. 1.60 Demitri v General Accident Indemnity Co (NO S0301296, 26 November 1996, BCSC) …. 5.8 Dennant v Skinner and Collom [1948] 2 KB 164 …. 1.50 DHL International (NZ) Ltd v Richmond Ltd [1993] 3 NZLR10 …. 3.255 Direct Acceptance Finance Ltd v Cumberland Furnishing Pty Ltd [1965] NSWR 1504 …. 2.65 Discount Records Ltd v Barclays Bank Ltd [1975] 1 WLR 315 …. 4.122, 4.147, 4.150 Diversitel Communications Inc v Glacier Bay Inc (2003 ONSC 03-CV23776SR) …. 2.67 Dixon v Sadler (1839) 5 M & W 40, 151 ER 172 …. 3.98

— v — (1841) 8 M & W 895, 151 ER 1303 …. 3.98 Doak v Weekes (1986) 82 FLR 334 …. 5.69, 5.75 Dolling-Baker v Merrett [1990] 1 WLR 1205 …. 9.249 Dona Mari, The [1973] 2 Lloyd’s Rep 366 …. 3.81, 3.84 Dooney, Re [1993] 2 Qd R 362 …. 9.49, 9.164 Dora, The [1989] 1 Lloyd’s Rep 69 …. 5.65, 5.68–5.70 Downs Investments Pty Ltd (in vol liq) (formerly known as Wanless Metal Industries Pty Ltd) v Perwaja Steel SDN BHD [2000] QSC 421 …. 2.136, 4.88 — v — [2001] QCA 433 …. 2.182 Durham Fancy Goods Ltd v Michael Jackson (Fancy Goods) Ltd [1968] 2 QB 839 …. 4.53 Durunna v Air Canada 2013 ABPC 31 …. 3.399

E Eastern City [1958] 2 Lloyd’s Report 127 …. 5.12 E D & F Man Ltd v Nigerian Sweets & Confectionery Co Ltd [1977] 1 Lloyd’s Rep 50 …. 4.143 Edward Owen Engineering Ltd v Barclays Bank International Ltd [1978] 1 Lloyd’s Rep 166; [1978] QB 159 …. 4.146 Edward Wong Financial Co Ltd v Infinity Industrial Co Ltd [1977-9] HKC 449 …. 4.48 Effort Shipping Co Ltd v Linden Management SA (The ‘Giannis Nk’) [1994] 2 Lloyd’s Rep 171 …. 3.121, 3.154 Elder, Dempster & Co v Paterson, Zochonis & Co [1924] All ER 135 …. 3.110

Elder Smith Goldsbrough Mort Ltd v McBridge Palmer [1976] 2 NSWLR 631 …. 1.78 Elders IXL Ltd v Lindgren (1987) 79 ALR 411 …. 9.124 Elettronica Sicula SpA (ELSI) (1989) ICJ 15; 28 ILM 1109 …. 6.98, 6.99 Emery Air Freight Corporation v Merck Sharpe & Dohme (Aust) Pty Ltd [1999] NSWCA 415 …. 3.270 Enterprise Alain Veyron v Societe E Ambrosio [1996] UNLEX (26 April 1995, CLOUT Case 151) …. 2.75 Esso Australia Resources v Plowman (1995) 128 ALR 391 …. 9.249, 9.250, 9.251 Euro-Diam v Bathurst [1988] 2 All ER 23; 1 Lloyd’s Rep 228 …. 9.126, 9.131 Europa case [1908] P 84 …. 3.110 European Communities Regime for the Importation, Sale and Distribution of Bananas Recourse to Arbitration by the European Communities Under Article 22.6 of the DSU (EC Bananas III (Ecuador) (Article 22.6 EC) (WT/DS27/ARB/ECU, 24 March 2000, WTO Arbitrators, unreported) …. 7.78 Ever Eagle Co Ltd v Kincheng Banking Corp [1993] 2 HKC 157 …. 4.150 Export Credits Guarantee Department v Universal Oil Products Co, Procon Inc and Procon (Great Britain) Ltd [1983] 2 Lloyd’s Rep 152 …. 4.73

F Fawcett v Smethurst (1914) 84 LJ Ch 473 …. 1.102 FDC Co Ltd v The Chase Manhattan Bank, NA [1990] 1 HKLR 277 …. 9.68

Fercus Srl v Mario Palazzo, 2000 US Dist LEXIS 11086 …. 2.13 Firwood Manufacturing Company Inc v General Tire Inc, 1996 Fed App 0303P …. 2.182 F Kanematsu & Co Ltd v The Ship ‘Shahzada’ (1956) 96 CLR 477 …. 3.89 Fleming v Marshall [2011] NSWCA 86 …. 9.83 Fleming & Wendeln GmbH & Co v Sanofi SA/AG [2003] EWHC 561 …. 1.20 Forestal Mimosa v Oriental Credit Ltd [1986] 1 Lloyd’s Rep 329 …. 4.83 Foresti v South Africa (Case No ARB(AF)/07/1, 4 August 2010, ICSID Tribunal) …. 6.94 Fortis Bank SA/NV v Indian Overseas Bank [2011] EWCA Civ 58 …. 4.139 Four Square Stores (Qld) Ltd v ABE Copiers Pty Ltd (1981) ATPR 40232 …. 1.80 Fraser River Pile & Dredge Ltd v Can-Dive Service Ltd (No CA020806, 27 October 1997, BCCA) …. 5.7 — v — [1999] 2 SCR 108 …. 5.7 Fraser Shipping Ltd v Colton [1997] 1 Lloyd’s Rep 586 …. 5.91 Freight Systems Ltd v Korea Shipping Corp (CL No 174 of 1988, 21 November 1990, High Court of Hong Kong, unreported) …. 3.58 Fryer Holdings v Liaoning MEC Group [2012] NSWSC 18 …. 2.99 Fu Yu Blue Stone Pneumatic Tire Company Ltd of Shandong v Nianfu Real Estate Development Company Ltd of Shenzhen (6 January 2015, Shenzhen Intermediate Court) …. 9.227 Furness Withy (Aust) Pty Ltd v Metal Distributors (UK) Ltd (The ‘Amazonia’) [1990] 1 Lloyd’s Rep 236 …. 9.266

G Gaetano Don v Mario Mantero [1976] ECR 1333 …. 8.23 Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1987) 163 CLR 236; 72 ALR 321 …. 1.64, 2.80 Gammatex International Srl v Shanghai Eastern Crocodile Apparels Co Ltd (2002) Hu Yi Zhong Min Wu (Shang) Chu Zi Di No 32 …. 2.6 Gard Marine & Energy Limited v China National Chartering Co Ltd and Others (Ocean Victory) [2013] EWHC 2199 …. 5.12 Gatewhite Ltd v Iberia Lineas Aeras de Espana SA [1989] 1 Lloyd’s Rep 160 …. 3.295 — v — [1990] 1 QB 326 …. 3.254 Gaudet v Brown (‘Argos’ case) (1873) LR 5 PC 134 …. 3.164 Gebruder Metelmann GmbH v NBR (London) Ltd [1984] 1 Lloyd’s Rep 614 …. 1.88 Gee & Garnham Ltd v Whittall [1955] 2 Lloyd’s Rep 562 …. 5.73, 5.87 Gefco UK Ltd v Mason [1998] 2 Lloyd’s Rep 585 …. 3.454, 3.458, 3.464 Geneva Pharmaceuticals Technology Corp v Barr Laboratories Inc/Apothecon Inc v Barr Laboratories Inc (2002) 201 F Supp 2d 236 …. 2.20, 2.61 Genpharm Inc v Pliva-Lachema AS, Pliva D 2005 361 F Supp 2d 49 …. 2.138 Geofizika DD v MMB International Limited [2010] 2 Lloyds Rep 1 …. 1.22 George Fetheers & Co Trading Pty Ltd and Guangdong Float Glass Co Ltd v Yangming Marine Transport Cooperation (No VG 118 of 1991 Fed No 468/94, 1991, Fed Ct Aust) …. 3.49 George Kallis (Manufacturers) Ltd v Success Insurance Ltd [1985] 2 Lloyd’s Rep 8 …. 5.21

George Straith Ltd v Air Canada (1991) 59 BCLR (2d) 241 …. 3.295 Georgetown Steel Corp v United States, 801 F2d (1986) …. 7.57 Gian Singh & Co Ltd v Banque de L’Indochine [1974] 1 WLR 1234; [1974] 2 All ER 754 …. 4.98, 4.133 Gibbs v Mercantile Mutual Insurance (Australia) Ltd (2003) 214 CLR 604 …. 5.5, 5.45 Gibson v Small (1853) 4 HLC 353, 10 ER 499 …. 3.98 Ginza Pte Ltd v Vista Corporation Pty Ltd [2003] WASC 11 …. 1.78, 2.99 GL Cicatiello v Anglo European Shipping Services Ltd [1994] 1 Lloyd’s Rep 678 …. 3.473 Global Process Systems Inc v Syarikat Takaful Malaysia Berhad [2011] UKSC 5 …. 5.76 Godina v Patrick Operations [1984] 1 Lloyd’s Rep 333 …. 3.144 Godley v Perry [1960] 1 WLR 9 …. 1.81 Golden Acres Ltd v Queensland Estates Pty Ltd [1969] Qd R 378 …. 9.122 Golden Ocean Assurance Ltd and World Mariner Shipping SA v Christopher Julian Martin [1989] 2 Lloyd’s Rep 390 …. 5.81 Goole and Hull Steam Towing Co Ltd v Ocean Marine Insurance Co Ltd [1928] 1 KB 589 …. 5.96 Gosse Millard; American Can Company v Canadian Government Merchant Marine Ltd [1927] 2 KB 432 …. 3.134 — v — [1929] AC 223 …. 3.108 GPL Treatment Ltd v Louisiana-Pacific Corp 914 Pacific Reports (2d Series) 682; 323 Oregon Reports 116; CLOUT Case 137 …. 2.7 Grace v MacArthur 170 F Supp 442 (1959) …. 9.23

Grant v Australian Knitting Mills Ltd [1936] AC 85 …. 1.79, 1.80 Graves Import Co Ltd v Chilewich Intl Corp 1994 US Dist Lexis 13393 …. 2.63 Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation [1998] HCA 65 …. 3.98, 3.111 GreCon Dimter Inc v JR Normand Inc [2005] 2 SCR 401 …. 9.78 Green v Australian Industrial Investment Ltd (1989) 25 FCR 532; 90 ALR 500 …. 9.94, 9.122, 9.125, 9.131 Guang Dong Light Headgear Factory Co, Ltd v ACI International Inc (WL 2893589, 2007, US District Court Kansas, unreported) …. 2.32 Gulf Company of the United Arab Emirates v Foreign Trade Company Ltd of Hangzhou Steel Product Group …. 2.18 Gurtner v Beaton [1993] 2 Lloyd’s Rep 369 …. 3.371

H Habib Bank Ltd v Bank of South Australia [1977] SASC 6309 …. 4.117 Hadley and Baxendale (1854) 9 Exch 341 …. 2.70 Halley, The (1868) LR 2 PC 193 …. 9.135 Hamilton, Fraser & Co v Pandorf (1887) 12 App Cas 518 …. 5.40 Hamzeh Malas & Sons v British Imex Industries Ltd [1958] 2 QB 127 …. 4.98 Handelsgericht des Kantons Zurich (HG 920670, 16 April 1995, CLOUT Case 196) …. 2.118 — (HG 930476, 21 September 1995, CLOUT Case 195) …. 2.190 — (HG 940513, 10 July 1996, CLOUT Case 193) …. 2.60 — (HG 950347, 5 February 1997, CLOUT Case 214) …. 2.215, 2.234

Hang Tat Foods USA Inc v Rizhao Aquatic Products Group & Rizhao Rirong Aquatic Products Ltd Co Ri Jingchuzi No 29 (1997, CISG W3 database) …. 2.259 Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association [1969] 2 AC 31 …. 2.103 Harlow & Jones Ltd v American Express Bank Ltd [1990] 2 Lloyd’s Rep 343 …. 4.21, 4.119, 4.121 Harris v Plymouth Varnish & Colour Co Ltd (1933) 49 TLR 521 …. 2.104 Hassneh Insurance v Mew [1993] 2 Lloyd’s Rep 243 …. 9.249 Hellenic Lines Ltd v Chemoleum Corp [1972] 1 Lloyd’s Rep 350 …. 3.101, 3.195 Hellenics Steel Co v Svolamar Shipping Co Ltd (The ‘Komninos S’) [1990] 1 Lloyd’s Rep 541 …. 3.93, 9.131 Herd & Co v Krawill Machinery Corp, 359 US 297 (1959) …. 3.139 Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc [1998] FCA 1485 …. 1.11 — v — [2000] FCA 660 …. 3.40, 3.94 — v United Shipping Adriatic Inc [1998] FCA 1622 …. 1.11, 3.64 HIH Casualty & General Insurance Ltd v Waterwell Shipping Inc [1998] NSWSC 436 …. 5.15, 5.90 Hill & Delamain (Hong Kong) Ltd v Manohar Gangaram Ahuja, Trading as Vinamito Trading House [1994] 1 HKLR 353 …. 3.285 Hines Exports Pty Ltd v Mediterranean Shipping Co [2000] SADC 71 …. 3.22, 3.40, 3.97 Hing Yip Hing Fat Co Ltd v Daiwa Bank Ltd [1991] 1 HKC 383 …. 4.131 Hodge v Club Motor Insurance Agency Pty Ltd and Australian

Associated Motor Insurers Ltd (1974) 2 ALR 421 …. 9.136 Hoeper v Neldner [1931] SASR 173 …. 1.47 Howe Richardson Scale Co Ltd v Polimex- Cekop and National Westminster Bank Ltd [1978] 1 Lloyd’s Rep 161 …. 4.80 Hoyanger, The [1979] 2 Lloyd’s Rep 79 …. 3.112 Huddart Parker Ltd v Cotter (1942) 66 CLR 624 …. 3.98 Hunter Grain Pty Ltd v Hyundai Merchant Marine Co Ltd (1993) 117 ALR 507 …. 3.101 Huxley v Aquila Air Ltd (7 February 1995, Supreme Court of British Columbia) …. 3.308 Hyosung America Inc and Hyosung America Inc as Assignee of Orkid Tex Inc v Sumagh Textile Co Ltd (No 94 CIV 0568 (SAS), 19 April 1996, unreported) …. 1.78

I Ian Stach Ltd v Baker Bosley Ltd [1958] 2 QB 130 …. 4.105 IBBCO Trading Pty Ltd v HIH Casualty & General Insurance Ltd [2001] NSWSC 490 …. 4.22, 5.2 ICC Arbitration Case 11849 of 2003 (2003, CISG W3 database) …. 2.196 Impuls ID International SL, Impuls ID Systems Inc, and PSIAR SA v Psion Teklogix Inc 234 F Supp 2d 1267 …. 2.12, 2.18 Independent Trustee Services Ltd v Anthony John Morris [2010] NSWSC 847 …. 9.82 India — Patent Protection for Pharmaceutical and Agricultural Chemical Products (WT/DS50/R, 5 September 1997, WTO Panel, unreported) …. 7.84

Indonesia Certain Measures Affecting the Automobile Industry (WT/DS54/R, WT/ DS55/R, WT/DS59/R, WT/DS64/R, 2 July 1998, WTO Panel, unreported) …. 7.79 Indussa Corp v SS Ranborg 377 F 2d 200 (2d Cir 1967) …. 3.105 Industrial Waxes, Inc v Brown [1958] Lloyd’s Rep 626 …. 5.55 Inflatable Toy Company Pty Ltd v State Bank of NSW (1994) 34 NSWLR 243 …. 4.150, 4.152 Innsbruck (4R 161/ 94, Court of Appeal, CLOUT Case 107) …. 2.122 Inowroclaw, The [1989] 1 Lloyd’s Rep 498 …. 3.93 Integrated Container Service Inc v British Trader’s Insurance Co Ltd [1984] 1 Lloyd’s Rep 154 …. 5.103 International Alpaca Management Pty Ltd, Textile Finance Ltd and Coolaroo Alpaca General Partner Pty Ltd v Ben KE Ensor and Garrymere Farms Ltd (No G490 of 1995, FED No 1054/95) …. 1.11 International Business Machines Co v Shcherban [1925] 1 DLR 864 …. 2.103 Ionides v Pender [1874] LR 9 QB 531 …. 5.65 Islamic Investment 1 SA v Transorient Shipping Ltd and Alfred C Toepfer International Gmbh (24 July 1998, Court of Appeal of the High Court (UK)) …. 3.157 Italian Imported Foods Pty Ltd v Pucci Srl [2006] NSWSC 1060 …. 2.7, 2.8

J Jade International Steel Stahl Und Eisen GmbH & Co KG v Robert Nicholas (Steels) Ltd [1978] 1 QB 917 …. 4.44 James Hardie & Coy Pty Ltd v Grigor Matter [1998] NSWSC 266 …. 9.83

Japanese Xinsheng Trade Company v Ningxia Hui Autonomous Region Nihong Metallurgic Product Company (Ningminshangzhongzi No 36, 2002, CISG W3 database) …. 2.18, 2.243 Jebsens International (Australia) Pty Ltd v Interfert Australia Pty Ltd [2012] SASC 50 …. 3.209 J H Rayner & Oilseeds Trading Co Ltd v Hambros Bank Ltd [1942] 2 All ER 649 …. 4.137 Jian Sheng Co Ltd v Great Tempo SA (4 June 1997, Federal Court of Canada) …. 3.40 J J Lloyd Instruments Ltd v Northern Star Insurance Co Ltd [1985] 1 Lloyd’s Rep 264 …. 5.75 J K International Pty Ltd v Standard Chartered Bank Australia Ltd [2000] QDC 44 …. 4.80 John Churcher Pty Ltd v Mitsui & Co (Australia) Ltd [1974] 2 NSWLR 179 …. 3.215 John Kaldor Fabricmaker Pty Ltd v Mitchell Cotts Freight (Aust) Pty Ltd (1989) 18 NSWLR 172; 90 ALR 244 …. 9.121, 9.123 John T Bill Co v United States 104 F 2d 67, 27 CCPA (Customs) 26 (1939) …. 7.26 John Weyerhaeuser, The [1975] 2 Lloyd’s Rep 439 …. 3.98, 3.113

K Kaleej International Pty Ltd v Gulf Shipping Lines Ltd (1986) 6 NSWLR 569 …. 3.57 Kanematsu Gmbh v Acadia Shipbrokers Ltd and Seanav International Ltd (18 February 1999, Federal Court of Canada) …. 3.58, 3.79, 3.103 Kantonsgericht Nidwalden (15/96 Z, 3 December 1997, CLOUT Case

220) …. 2.189 Kawasaki Steel Corporation v Owners Interested in the Ship ‘Daeyang Honey’ (1993) 120 ALR 109 …. 9.83, 9.107 Kay Minge v J W Oak Furniture Imports Ltd and William Heinhuis (26 February 1998, Supreme Court of British Columbia, unreported) …. 1.13 Keele v Findley (1990) 21 NSWLR 444 …. 9.49, 9.166 Kendall v Lillico [1969] 2 AC 31 …. 1.79 KH Enterprise, The (Cargo Owners) v The Pioneer Container (Vessel Owners) [1994] 2 HKLR 134 …. 9.132 Khoo Teck Seong v Hung Yue Bank [1906-7] HKLR 34 …. 3.45 Kim Meller Imports Pty Ltd v Eurolevant SpA (1986) 7 NSWLR 269 …. 3.215, 9.71 Kirkham v Attenborough [1897] 1 QB 201 …. 1.56 Kishinchand & Sons (Hong Kong) Ltd v Wellcorp Container Lines Ltd and Wellcorp Express (Canada) Inc (14 December 1994, Federal Court of Canada, unreported) …. 3.102, 3.114 Koe Guan Co v The Yan On Marine & Fire Insurance Co Ltd [1906-7] HKLR 95 …. 3.103 Koninklijke Bunge v Compagnie Continentale D’Importation [1973] 2 Lloyd’s Rep 44 …. 3.35, 3.112 Kopitoff v Wilson (1876) 1 QBD 377 …. 3.98 Korea Exchange Bank v Debenhams (Central Buying) Ltd [1979] 1 Lloyd’s Rep 548 …. 4.28, 4.29, 4.54 Korea Hendai General Trade Company v China Hubei Province Metal Import & Export Company (2001, CISG W3 database) …. 2.135 Koster v (American) Lumbermens Mutual Casualty Co (1947) 330 US 518 …. 9.77

Kotsambasis v Singapore Airlines Ltd (13 August 1997, Supreme Court of New South Wales) …. 3.363 Krasnogrosk, The (1993) 31 NSWLR 18 …. 3.196, 3.216 Kretschmer GmbH & Co KG v Muratori Enzo, Corte Suprema Di Cassazione (No 5739, 3 March 1988, CLOUT Case 8, unreported) …. 2.5 Kuehne Nagel (Hong Kong) Ltd v Yuen Fung Metal Works Ltd [1979] HKLR 526 …. 3.42, 3.102 Kwok Wing v Maytex Trading Co (1977) HKLR 149 …. 4.66

L Laceys Footwear (Wholesale) Ltd v Bowler International Freight Ltd [1997] 2 Lloyd’s Rep 369 …. 3.470 Laing v Boreal Pacific (No T-1713-96, 17 February 1999, FCTD) …. 5.90 Lamb Head Shipping Co Ltd v Jennings (The Marel) [1992] 1 Lloyd’s Rep 402 …. 5.82 Landegericht Frankfurt a M (3/11 O 3/91, 16 September 1991, CLOUT Case 6) …. 2.67 Landgericht Aachen (41 0 198/89, 3 April 1989, CLOUT Case 46) …. 2.220 — (43 0 136/92, 14 May 1993, CLOUT Case 47) …. 2.79 Landgericht Baden-Baden (4 0 113/90, 14 August 1991, CLOUT Case 50) …. 2.102 Landgericht Trier (7 HO 78/95, 12 October 1995, CLOUT Case 170) …. 2.101 Law & Bonar Ltd v British American Tobacco Co Ltd [1916] 2 KB 605 …. 1.72

Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 …. 9.133 Leesh River Tea Co v British India Steam Navigation Co (The ‘Chyebassa’) [1967] 2 QB 250 …. 3.109 Les Industries Perlite Inc v The Marina Di Alimuri (TD) [1996] 2 FC 426 …. 3.159 Leval & Co v Colonial Steamships Ltd [1960] 2 Lloyd’s List Law Reports 198 …. 3.112, 3.115 Lianhe Enterprise (US) Ltd v Yantai Branch of Shandung Foreign Trade Co (2000, CISG W3 database) …. 2.12 Lianzhong Enterprise Resources (Hong Kong) Ltd v Xiamen International Trade & Trust Co (1993, CISG W3 database) …. 2.4 Lindsay v Miller [1949] VLR 13 …. 9.130 Lloyd v Fleming [1872] LR 7 QB 299 …. 5.105 Lockwood v Moreira (No C21444, 24 April 1998, Ont CA) …. 5.98 Loftus v Lee (1958) 308 SW(2d) 645 …. 9.77 London General Insurance Co v General Marine Underwriters’ Assoc [1921] 1 KB 104 …. 5.67 Lucena v Craufurd [1806] 2 Bos & O (NR) 269 …. 5.35 Lucky Trading Co and Lucky Snow Enterprises (Canada) Ltd v Icicle Seafoods Inc (30 January 1998, Supreme Court of British Columbia, unreported) …. 1.79 Lucky Wave [1985] 1 Lloyd’s Rep 80 …. 3.112 Lynne Watson and Alessandro Belmann [1976] ECR 1185 …. 8.23 Lyon v Creati (1892) 18 VLR 629 …. 2.82

M

Macaura v Northern Assurance Co Ltd [1925] AC 619 …. 5.38 McClintock v Union Bank of Australia Ltd (1920) 20 SR(NSW) 494 …. 4.43 McDermid v Nash Dredging & Reclamation Co Ltd [1987] 2 Lloyd’s Rep 201 …. 5.35 McFadden v Blue Star Line [1905] 1 KB 697 …. 3.98 McGregor v Huddart Parker (1919) 26 CLR 336 …. 3.113 McKain v R W Miller & Company (South Australia) Pty Ltd (1991) 174 CLR 1 …. 9.113, 9.136 MacKinnon McErlane Booker Pty Ltd v P O Australia Ltd [1988] VR 534 …. 5.98 McNeill & Higgins Co v Czarnikow-Rienda Co (1921) 274 F 397 …. 2.104 Macromex Srl v Globex International Inc 2008 WL 1752530 …. 2.131 MacShannon v Rockware Glass Ltd [1978] AC 795 …. 9.77 Magellan International Corp v Salzgitter Handel GmbH, 76 Federal Supplement (2d series) 919 …. 2.192 Maharani Woollen Mills Co v Anchor Line [1927] 29 Lloyd’s List L Rep 169 …. 3.105 Mahkutai, The [1996] 2 HKLR 199 …. 3.145 Malca-Amit Ltd v British Airways Plc (28 April 1990, QB) …. 3.298 Man v Nigerian Sweets and Confectionery [1977] 1 Lloyd’s Rep 50 …. 4.144 Mansonville Plastics (BC) Ltd v Kurtz GmbH, 2003 BCSC 1298 …. 2.166 Manzel Equipment Pty Ltd v APE Pte Ltd [2000] NSWSC 1172 …. 4.153

Marbig Rexel Pty Ltd v ABC Containerline NV (The TNT Express) [1992] 2 Lloyd’s Rep 636 …. 3.53 Margaronis Navigation v Henry Peabody [1964] 3 All ER 333 …. 1.69 Maritime Insurance Co Ltd v Geelong Harbour Trust Commissioners (1908) 6 CLR 194 …. 9.77 Markham Meat Industries Supplier Inc v Air France (9 July 1998, Supreme Court of Ontario) …. 3.301 Marques Roque, Ioaquim v SARL Holding Manin Riviere [1996] UNLEX (26 April 1995, Court of Appeal of Grenoble (Commercial Division), CLOUT Case 152) …. 2.67 Marstrand Fishing Co Ltd v Beer (The ‘Girl Pat’) (1936) 56 Ll L Rep 163 …. 5.91, 5.93 Masefield AG (Appellant) v Amlin Corporate Member Ltd and the Bungo Melati Dua [2011] EWCA Civ 24 …. 5.104 Matthew Short & Associates Pty Ltd v Riviera Marine (International) Pty Ltd [2001] NSWCA 281 …. 1.49, 1.57 Maurice Desgagnes, The [1977] 1 Lloyd’s Rep 290 …. 3.40, 3.42, 3.46 Maxform SpA v Mariani and Goodville Ltd [1981] 2 Lloyd’s Rep 54 …. 4.36 MCC-Marble Ceramic Centre Inc v Ceramica Nuova D’Agostino SpA 1998 US App Lexis 14782 …. 2.271 Mercantile Mutual Insurance (Australia) Ltd v Gibbs [2001] WASCA 271 …. 5.43, 5.45 Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd (1933) 48 CLR 565 …. 9.141 Metro Meat Ltd v Fares Rural Co Pty Ltd [1985] 2 Lloyd’s Rep 13 …. 1.28, 1.29 Michael Doyle & Associates Ltd v Bank of Montreal (1984) 11 DLR (4th)

496 …. 4.124 Midland Bank v Seymour [1955] 2 Lloyd’s Rep 147 …. 4.135 Minterrnet SA v He’nan Local Product Import and Export Company (2000, CISG W3 database) …. 2.181 Missouri Steamship Company, Re (1889) 42 CD 321 …. 9.68 Mitsui & Co (Canada) v The Owners (28 May 1999, Supreme Court of British Columbia) …. 9.78 Mitsui & Co Ltd v Gold Star Line Ltd [1975] HKLR 74 …. 3.65 Moore & Co and Landauer & Co, Re [1921] 2 KB 519 …. 2.108 Moralice (London) Ltd v ED & F Man [1954] 2 Lloyd’s Rep 526 …. 4.137 Mount Albert Borough Council v Australasian Temperance and General Mutual Life Assurance Society [1937] 4 All ER 206 …. 9.116 MSC Mediterranean Shipping Company S A v Cottonex Anstalt 2015 WL 537840 …. 3.160 Muirhead v Commonwealth Bank of Australia [1996] QCA 241 …. 4.66 Muncaster Castle case, The [1960] 1 Lloyd’s Rep 57 …. 3.108 MW Hardy & Co Inc v AV Pound & Co Ltd [1955] 1 Lloyd’s Rep 155 …. 1.15

N Nanka Bruce v Commonwealth Trust Ltd [1926] AC 77 …. 1.55, 2.140 National Commercial Bank v Wimborne (1979) 11 NSWLR 156 …. 9.138 National Semiconductors (UK) Ltd v UPS [1996] 2 Lloyd’s Rep 212 …. 3.470, 3.471

Nauru v Australia (ICJ, pending) …. 6.97 NCNB National Bank v Gonara (HK) Ltd [1984] HKLR 152 …. 4.29 Nederlandse Speciaal Drukkerijen v Bollinger Shipping Agency [1999] NSWSC 200 …. 3.27, 3.29, 9.83 Neuchatel Swiss General Insurance Co Ltd v Vlasons Shipping Inc [2001] VSCA 25 …. 5.22 Neuromed (2002 WL 465312) …. 2.30 New South Wales v Commonwealth (The Incorporation Case) (1990) 169 CLR 482 …. 1.43 New Zealand Shipping v Satterthwaite (The ‘Eurymedon’) [1975] AC 154 …. 3.143, 3.144 Ni Laibao and Liu Donglian v Soudal Investments Ltd (31 Dec 2014, Shanghai 2nd Intermediate Court) …. 9.227 Niblett Ltd v Confectioners’ Materials Co Ltd [1921] 3 KB 387 …. 1.77, 2.89, 2.90 Nicaragua v The United States (1984, ICJ, unreported) …. 6.97 Nikolay Malakhov Shipping Co Ltd v SEAS Sapfor Ltd [1998] NSWSC 65 …. 3.92, 3.135 Nippon Yusen Kaisha v Ramjiban Serowgee [1938] AC 429 …. 3.80 Nissho Iwai Australia Ltd v Malaysian International Shipping Corp (1988) 12 NSWLR 730 …. 2.65, 3.91 — v — (1989) 167 CLR 219 …. 3.134, 3.135 ‘Nogar Marin’, The [1987] 1 Lloyd’s Rep 456 …. 3.64 — [1988] 1 Lloyd’s Rep 412 …. 3.80 North American Speciality Insurance Co v Shirley Myers, 1997 Fed App 0133p …. 5.117, 5.132 Noten (TM) BV v Harding [1989] 2 Lloyd’s Rep 527 …. 5.72

Notice of Final Results of Antidumping Administrative Review; Low Enriched Uranium from France, 69 Fed Reg 46501 (3 August 2004) …. 7.57 NSW Leather v Vanguard Insurance (1991) 25 NSWLR 699 …. 5.35, 5.37, 5.46

O Obergericht des Kantons Luzern (11 95 123/357, 8 January 1997, CLOUT Case 192) …. 2.119 Oberlandesgericht Celle (20 U 76/94, 24 May 1995, CLOUT Case 136) …. 2.201, 2.214 Oberlandesgericht Dusseldorf (17 U 82/93, 8 January 1993, CLOUT Case 48) …. 2.120 — (17 U 146/93, 14 January 1994, CLOUT Case 130) …. 2.177, 2.183, 2.187, 2.191 — (6 U 119/93, 10 February 1994, CLOUT Case 82) …. 2.200 — (6 U 152/95, 11 July 1996, CLOUT Case 169) …. 2.195 Oberlandesgericht Frankfurt a M (5 U 261/90, 13 June 1991, CLOUT Case 1) …. 2.188 — (5 U164/90, 17 September 1991, CLOUT Case 2) …. 2.67 Oberlandesgericht Hamm (19U 97/91, 22 September 1992, CLOUT Case 227) …. 2.48, 2.182 — (11 U 206/93, 8 February 1995, CLOUT Case 132) …. 2.137, 2.191 — (11 U 1991/94, 9 June 1995, CLOUT Case 125) …. 2.194 Oberlandesgericht Karlsruhe (I U 280/96, 25 June 1997, CLOUT Case 230) …. 2.117 Oberlandesgericht Koln (29 U 202/93, 2 February 1994, CLOUT Case

120) …. 2.49 — (19 U 282/93, 26 August 1994, CLOUT Case 122) …. 2.21 — (22 U 4/96, 21 May 1996, CLOUT Case 168) …. 2.110 Oberlandesgericht Munchen (7 U 1720/94, 8 February 1995, CLOUT Case 133) …. 2.272 — (7 U 3758/94, 8 February 1995, CLOUT Case 167) …. 2.118 — (7U 5460/94, 8 March 1995, CLOUT Case 134) …. 2.35 — (7 U 4427/97, 11 March 1998, CLOUT Case 232) …. 2.117 Oberlandesgericht Oldenburg (11 U 64/94, 1 February 1995, CLOUT Case 165) …. 2.208 Oberster Gerichtshof (10 Ob 1506/94, 11 February 1997, CLOUT Case 190) …. 2.20 — (2 Ob 68/97m, 20 March 1997, CLOUT Case 188) …. 2.54 Ocean Industries Pty Ltd v Owners of the ship M V ‘Steven C’ [1994] 1 Qd R 69 …. 9.106 Ocean Shipping Co of Shanghai v Haerbing Chemical Products Import and Export (Dalian) Co (unreported, 1991) …. 3.155 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; 79 ALR 9 …. 1.34, 9.17, 9.24, 9.25, 9.31, 9.40, 9.41, 9.44, 9.47, 9.54, 9.60–9.62, 9.66, 9.74, 9.77–9.80, 9.84, 9.85, 9.93, 9.94, 9.108, 9.109, 9.112, 9.125 Oilmes Combustibles SA v Vigan SA S/Ordinario (Argentina, 15 March 1991, CLOUT Case 22) …. 2.5 Orbisphere Corp v US, 726 F Supp 1344 (Ct.Int’l Trade 1989) …. 2.6 Osterreichische Landerbank v S’Elite Ltd [1980] 2 Lloyd’s Rep 139 …. 4.51 Overseas Commodities Ltd v Style [1958] 1 Lloyd’s Rep 546 …. 5.73, 5.90

P Pacific Composites Pty Ltd v Transpac Container System Ltd (t/a Blue Anchor Line) [1998] FCA 496 …. 3.95, 3.215 Pacific Composites Pty Ltd, Lermarne Corp Ltd v Blue Anchor Line, ANL Ltd & United Arab Shipping Co [1997] FCA 576 …. 1.11, 3.86 Palace Hotel Ltd v Owners of the Ship or Vessel Happy Pioneer [1982] HKC 640 …. 9.70 Panda Srl v Shunde Westband Furniture Co, Ltd (2004) Min Si Ti Zi Di No 4 …. 2.11 Parouth, The [1982] 2 Lloyd’s Rep 351 …. 9.124 Pegasus Leasing Ltd v Cadoroll Pty Ltd (24 May 1996, Federal Court of Australia) …. 9.29, 9.31 Pelly v Royal Exchange Assurance Co (1757) 1 Burr 341 …. 5.5 Percy v West Bay Boat Builders (No CA021807, 28 October 1997, BCCA) …. 5.77 Perry Engineering Pty Ltd (Receiver and Manager appt’d) v Bernold AG [2001] SASC 15 …. 1.39 PetroEcuador 2003 332 F 3d …. 2.30 Phillips v Eyre (1870) LR 6 QB 1 …. 9.135– 9.137, 9.139 Phillips Petroleum Co v Cabaneli Naviera SA (The Theodegmon) [1990] 1 Lloyd’s Rep 52 …. 3.93, 3.94 Pickersgill v London & Provincial Marine Insurance Co [1912] 3 KB 614 …. 5.64 Picturesque Atlas Co Ltd v Searle (1892) 18 VLR 633 …. 1.70, 2.82 Piesse v Tasmanian Orchardists and Producers Co-operative Association Ltd (1919) 15 Tas LR 67 …. 2.82 Playcorp Pty Ltd v Taiyo Kogyo Limited [2003] VSC 108 …. 2.6, 2.7

Polites v The Commonwealth (1945) 70 CLR 60 …. 9.90 Polurrian Steamship v Young [1915] All ER 116 …. 5.93 Poole v Smith’s Car [1962] 1 WLR 744 …. 1.56 Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (The ‘New York Star’) (1977–78) 139 CLR 231 …. 3.88, 3.143, 3.144 Power Curber International Ltd v National Bank of Kuwait [1981] 1 WLR 1233 …. 4.122 President of India v Metcalfe Shipping Co [1969] 2 All ER 1549 …. 3.67 Preston v Hunting Air Transport Ltd [1956] 1 QB 454 …. 3.363 PS Chellaram & Co Ltd v China Ocean Shipping [1989] 1 Lloyd’s Rep 413 …. 9.47 Pyrene Co Ld v Scindia Navigation Co [1954] 2 QB 402 …. 3.211

Q Queen Charlotte Lodge Ltd v Hiway Refrigeration Ltd (No C946385, 7 January 1998, BCSC) …. 5.87 Quinn v Canadian Airlines International Ltd (1994) 18 QR (3rd) 326 …. 3.363

R R v Purolator Courier Ltd (7 January 1997, Supreme Court of British Columbia) …. 3.24 Rafsanjan Pistachio Producers Co-operative v Bank Leumi (UK) Plc [1992] 1 Lloyd’s Rep 513 …. 4.146 Randell v Atlantica Insurance Co Ltd (1983) 80 FLR 253 …. 5.52, 5.69, 5.75

Razelos v Razelos (No 2) [1970] 1 WLR 392 …. 9.138 Red Sea Insurance Co Ltd v Bouygues SA [1994] 2 HKC 35 …. 9.136, 9.137 Renard Constructions v Minister for Public Works (Court of Appeal (NSW), 12 March 1992, CISG W3 database) …. 2.268 Rewia, The [1991] 2 Lloyd’s Rep 325 …. 3.40 Rheinland Versicherungen v srl Atlarex and Allianz Subalphina spa (CLOUT Case 378) …. 2.30 Rhesa Shipping Co SA v Edmunds (The ‘Popi M’) [1985] 2 All ER 712 …. 5.82 Rocklea Spinning Mills Pty Ltd v Anti- Dumping Authority (1995) 129 ALR 401 …. 7.46 Roder Zelt-Und Hallenkonstruktionen GmbH v Rosedown Park Pty Ltd (1995) 13 ACLA 776 …. 2.20, 2.241 — v — (1995) 17 ACSR 153 …. 1.11 Rolfe Lubbell & Co v Keith and Greenwood [1979] 2 QB 75 …. 4.36 Rosenfeld Hillas & Co Pty Ltd v The Ship ‘Fort Laramie’ (1923) 32 CLR 25 …. 3.48, 9.106 Rosenhain v Commonwealth Bank of Australia (1922) 31 CLR 46 …. 4.39 Ross v The Adelaide Marine Assurance Co [1970] VR 232 …. 5.51 Rowland v Divall [1923] 2 KB 500 …. 1.77 Royal Boskalis Westminster NV v Mountain [1999] QB 674 …. 5.104 Rudolph Robinson Steel Co v Nissho Iwai Hong Kong Corp Ltd [1998] 1 HKLRD 966 …. 4.21, 4.119, 4.121 Russell v Canadian General Insurance Co, decided on (No 94-CQ56261, 12 January 1999, Ont Ct Gen Div) …. 5.88

Rustenberg Platinum Mines Ltd v South African Airways [1977] 1 Lloyd’s Rep 564 …. 3.299 R W Miller & Co Pty Ltd v Australian Oil Refining Pty Ltd (1967) 117 CLR 288 …. 3.118 Ryder v Wombwell (1868) LR 4 Ex 32 …. 1.102

S Sabine Howaldt, The [1970] 1 Lloyd’s Rep 185 …. 3.112, 3.113 Sale Continuation Ltd v Austin Taylor & Co Ltd [1967] 2 Lloyd’s Rep 403 …. 4.143 Samsung Hong Kong Ltd v Keen Time Trading Ltd [1988] 2 HKLRD 341 …. 1.78 Sanko Steamship Co Ltd and Grandslam Enterprise Corp v Sumitomo Australia Ltd (No G082 of 1991 Fed No 962/95, AustLII databases) …. 3.96 SARL Bri Production Bonaventure v Societe Pan Africa Export [1995] UNLEX D 95-1 …. 2.270 Saunders v Ansett Industries (1975) 10 SASR 579 …. 3.296 Schibsby v Westenholz (1870) LR 6 QB 155 …. 9.150 Schiedsgericht der Hamburger freundschaftlichen Arbitrage (CLOUT Case 293, unreported) …. 2.4 Schiedsgericht der Handelskammer Hamburg (1996, CLOUT Case 166) …. 2.154 Schmitz-Werke GmbH & Co v Rockland Industries, Inc; Rockland International FSC, Inc 37 Fed Appx 687 …. 2.97, 2.178, 2.268 Schureck v McFarlane (1923) 41 WN (NSW) 3 …. 2.82 Scottish & Newcastle International Ltd v Othon Ghalanos Ltd [2008]

UKHL 11 …. 1.32 Scruttons Ltd v Midland Silicones Ltd [1962] AC 446 …. 3.142 Seafood Imports Pty Ltd v ANL Singapore Pte Ltd [2010] FCA 702 …. 3.53, 3.211 Sellers Fabrics Pty Ltd v Hapag-Lloyd AG [1998] NSWSC 646 …. 3.148, 3.149 Shanghai Shen He Import and Export Ltd v Japan Itochu Corporation (2001, CISG W3 database) …. 2.13 Shearwater Marine Ltd v Guardian Insurance Co (No CA022988, 1 October 1998, BCCA) …. 5.93 Shell Chemicals UK Ltd v P & O Roadtanks Ltd [1995] 1 Lloyd’s Rep 297 …. 3.466 Shell International Petroleum Co Ltd v Gibbs (The ‘Salem’) [1981] 2 Lloyd’s Rep 316 …. 5.44 Shen Zhen Fengshen Industry Development Co v Inter Service Internation France (2000, CISG W3 database) …. 2.115 Ship Agencies Australia Pty Ltd v Fremantle Fishermen’s Co-Operative Society Ltd (1991) 8 SR (WA) 109 …. 1.81, 2.146 Ship ‘Marlborough Hill’ [1921] 1 AC 444 …. 3.61 Ship ‘Mercury Bell,’ The v Amosin (1986) 27 DLR (4th) 641 …. 9.128 Ship ‘Socofl Stream,’ The v CMC [2001] FCA 961 …. 3.65, 3.102 Shipping Co of Tianjin v China International Engineering and Materials Corp and Tongli Development Co (unreported) …. 3.162 Shipping Corp of India v Gamlen Chemical Co (A’Asia} Pty Ltd (1980) 147 CLR 142; 32 ALR 609 …. 3.93, 3.99, 3.178 Shuttle Packaging Systems LLC v Jacob Tsonakis INA SA and INA Plastics Corporation, 2001 US Dist LEXIS 21630 …. 2.67, 2.93, 2.266

Shuttle Packaging Systems v Tsonakis (US District Court, Western District of Michigan, Southern Division, 17 December 2001, CLOUT Abstract 578) …. 2.61 Siderurgica Mendes Junior SA and Mitsui & Co v The Owners of Icepearl (31 January 1996, Supreme Court of British Columbia) …. 3.67 Silbert Sharpe & Bishop Ltd v George Wills & Co Ltd [1919] SALR 114 …. 2.103, 2.108 Sim v Robinow (1892) 19 R 665 …. 9.109 Simms v West (1961) 107 CLR 157 …. 1.45 Simms Jones Ltd v Protochem Trading NZ Ltd [1993] 3 NZLR 369 …. 1.80 Singapore Company v Dongling Trade Company, Shanghai Xuyang Trade Company, Jingfang Xi & Yunli, Luo (2004, CISG W3 database) …. 2.12 Singapore Da Guang Group v Jiangsu Machines Import & Export Ltd (1999) Jing Zhong Zi Di No 448 …. 2.49 Siskiyou Evergreen Inc Debtor (US Bankruptcy Court for the District of Oregon, 29 March 2004,CLOUT abstract 694) …. 2.122 Skandia Insurance v Skoljarev [1979] 142 CLR 375 …. 5.83 Sky Cast Inc v Global Direct Distribution LLC, 2008 WL 754734 (ED Ky) …. 2.6, 4.88 Slattery v Mance [1962] 1 QB 676 …. 5.89 Smith & Sons v Peninsular & Oriental S N Co (1938) 60 Lloyd’s List Law Reports 419 …. 3.94, 3.98 Societe Calzados Magnanni v SARL Shoes General International (SGI) (CLOUT Case 313, October 1999, unreported) …. 2.4 Societe Camara Agraria Provincial de Guipuzcoa v Andre Margaron

[1995] UNLEX (29 March 1995, Court of Appeal of Grenoble (Commercial Division), CLOUT Case 153) …. 2.62 Societe Ceramique Culinaire de France v Societe Musgrave Ltd (17 December 1996, Court of Cassation (Commercial Division), CLOUT Case 206) …. 2.267 Societe Fauba v Societe Fujitsu [1996] UNLEX (22 April 1992, Court of Appeal of Paris (15th Division), CLOUT Case 158) …. 2.15, 2.58 — v — [1996] UNLEX (4 January 1995, Court of Cassation (1st Civil Division), CLOUT Case 155) …. 2.259 Societe Françse de Factoring International Factor France v Roger Caiato (December 1995, Court of Appeal of Grenoble (Commercial Division), CLOUT Case 202) …. 2.101 Societe Isea Industrie spa v SA Lu (13 December 1995, Court of Appeal of Paris, CLOUT Case 203) …. 2.47 Societe Lorraine des Produits Metallurgiques v Banque Paribas Belgique SA [1995] UNLEX D93-23 …. 2.142 Société Mode jeune diffusion v Societe Maglificio il Falco di Tiziana Goti e Fabio Goti and Others (2 December 1997, Court of Cassation (1st Civil Division), CLOUT Case 207) …. 2.79 Societe Productions SCAP v Roberto Faggioni (CLOUT Case 312) …. 1.12 Societe Sacovini v SARL Les Fils de Henri Ramel (23 January 1996, Court of Cassation (1st Civil Division), CLOUT Case 150, unreported) …. 2.8 Societe Termo King v Societe Cigna France (15 May 1996, Court of Appeal of Grenoble (Commercial Division), CLOUT Case 204) …. 2.10, 2.97 Society of Lloyd’s v Canadian Imperial Bank of Commerce [1993] 2 Lloyd’s Rep 579 …. 4.150

Sonox Sia v Albury Grain Sales Inc, Ari Ben-Menashe and Alexander Legault [2005] QJ No 9998 …. 9.282 Soproma SpA v Marine and Animal By-Products Corp [1966] 1 Lloyd’s Rep 367 …. 4.133, 4.142 South Pacific Air Motive Pty Ltd v Kenneth Magnus [1998] FCA 1107 …. 3.360, 3.363 Southland Rubber Co Ltd v Bank of China [1997] HKLRD 1300 …. 4.84 Southwark, The 191 US 1 …. 3.98 Soya GmbH v White [1980] 1 Lloyd’s Rep 491 …. 5.59 Soya GmbH Kommanditgesellschaft v White [1982] 1 Lloyd’s Rep 136 …. 5.74 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 …. 9.77 SS Pharmaceutical Co Ltd v Qantas Airways Ltd [1991] 1 Lloyd’s Rep 288 …. 3.322, 3.325 St George Bank Ltd v Heinz Salzberger and Norma Salzberger [2001] NSWCA 67 …. 4.133 St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382 …. 9.42 Stainless Steel Wire Rod from the Republic of Korea: Final Results of Antidumping Duty Administrative Review, 69 Fed Reg 19153 (12 April 2004) …. 7.57 Standard Bank of Canada v Wildey (1919) SR (NSW) 384 …. 4.56, 4.70 Standard Bent Glass Corp v Glassrobots Oy, 333 F 3d 440 …. 9.181 Standard Chartered Bank v Dorchester Lng (2) Limited ‘Mt Erin Schulte’ 2014 WL 5311900 …. 4.108 State Auto Mut Ins Co v Babcock 220 NW 2d 717 (1974) …. 5.115 Stephen Shane and Donald Shane v JCB Belgium NV (2003, unreported)

…. 2.20 Stora Enso Oyj v Port of Dundee, [2006] CSOH 40 …. 1.22 Strangemores Electrical Ltd v Insurance Corp of Newfoundland Ltd [1997] ILR I-3475 …. 5.85 Subrogees of Shared Imaging Inc v Neuromed Medical Systems & Suppor, GmbH 2002 US Dist LEXIS 5096 …. 2.18 Suisse Atlantique Société d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361 …. 2.65 Sumner Permain & Co v Webb & Co [1922] 1 KB 55 …. 2.104 Supermicro Computer Inc v Digitechnic, SA and Carri Systems, d/b/a Digitechnic, 2001 US Dist LEXIS 7620 …. 9.19 Swell v Burdick (1884) 10 App Cas 74 …. 3.61 Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd [1959] AC 576 …. 3.42, 3.79, 3.102 Sztejn v J Henry Schroder Banking Corp (1941) 31 NYS 2nd 631 …. 4.151

T Taihai Co, Ltd Japan v Jiangsu Sainty International Group Ltd Textile Import & Export Nantong Company (2000, CISG W3 database) …. 2.18 Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332; 91 ALR 180; 1 ACSR 510 …. 9.204 Tasman Express Line Ltd v JI Case (Australia) Pty Ltd (1992) 111 FLR 108 …. 3.90, 3.125 Tattersall v National Steamship (1884) 12 QB 297 …. 3.110 Tech Pacific Australia Pty Ltd v Air Pacific Ltd [1999] NSWCA 71 ….

3.327 Textile Material Co of Huarun Ltd v Shipping Agent Co of Zanjiang (1994) 10 Selected Cases of the People’s Court 139 …. 3.103 Thames & Mersey Marine Insurance Co v Gunford Shipping Co [1911] AC 529 …. 5.70 Thomas Cook Group, The v Air Malta Co Ltd [1997] 2 Lloyd’s Rep 399 …. 3.300 Thorne v Borthwick (1956) 56 SR (NSW) 81 …. 1.81, 2.107 Thyssen Canada Ltd v Mariana Maritime SA (7 May 1999, Federal Court of Canada, unreported) …. 3.198 Thyssen Krupp Metallurgical Products GmbH v Sinochem International (Overseas) Pte Ltd, National Supreme Court, Min Si Zhong No 35 (Civil Division 4 Final No 35) …. 2.19, 2.67 Tierney v Etherington (1743, unreported) …. 5.5 Tool Steel from the Federal Republic of Germany; Correction to Early Determination of Anti-dumping Duty, 51 Fed Reg 10071 (24 March 1986) …. 7.57 Touraine, The (1927) 29 Lloyd’s List Law Reports 265 …. 3.98, 3.112 Trading & General Investment v Gault Armstrong & Kemble (The ‘Okeanis’) [1986] 1 Lloyd’s Rep 195 …. 5.79 Trans Western Express v Quadrant Sales and Imports Inc (19 November 1996, Supreme Court of British Columbia) …. 3.41 Triangle Underwriters Inc v Honeywell Inc 604 Fed 737 (1979) …. 1.44 Tribunal Cantonal du Valais (20 December 1994, CLOUT Case 197) …. 2.144 Tribunal Supremo (3 March 1997, CLOUT Case 188) …. 2.5 Trishul (UK) Ltd v Winnie Tong t/as Winda Product [1987] HKLR 161 …. 4.154

Troy v The Eastern Company of Warehouses [1921] 8 LI L Rep 17 …. 3.57 Trustees, Executors & Agency Co Ltd v Margottini [1960] VR 417 …. 9.121 Tukan Timber Ltd v Barclays Bank Plc [1987] 1 Lloyd’s Rep 171 …. 4.150 Turner v Manx Line [1990] 1 Lloyd’s Rep 137 …. 5.39 Tyler v Judges of the Court of Registration (1900) 175 Mass 71 …. 9.105

U Underwood Ltd v Burgh Castle Brick and Cement Syndicate [1922] 1 KB 343 …. 1.54 Union of India v McDonnell Douglas Corp [1993] 2 Lloyd’s Rep 48 …. 9.239 United City Merchants (Investments) Ltd v Royal Bank of Canada [1982] 2 WLR 1039 …. 4.98, 4.133 — v — [1983] 1 AC 168 …. 4.146 United Dominions Corp Ltd v Brian Pty Ltd (1984-85) 157 CLR 1 …. 6.19, 6.23 United Fisheries Ltd v Papasavas & Co [2001] VSC 86 …. 4.104 United Mills Agencies Ltd v R E Harvey, Bray & Co [1952] 1 TLR 149 …. 5.20 United Parcel Service Co v Rickert, 996 SW2d 464 (Ky 1999) …. 4.88 United States — Anti-Dumping Act of 1916 — Complaint by the European Communities (WT/DS136/R, 31 March 2000, WTO Panel, unreported) …. 7.38 — (WT/DS136/AB/R, WT/DS162/AB/R, 28 August 2000, WTO

Appellate Panel, unreported) …. 7.39 United States — Anti-Dumping Measures on Certain Hot Rolled Steel Products from Japan (WT/DS184/AB/R, 24 July 2001, WTO Appellate Panel, unreported) …. 7.41, 7.42 United States — Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany (WT/DS213/ AB/R, 28 November 2002, WTO Appellate Panel, unreported) …. 7.52 United States — Measures Treating Export Restraints as Subsidies (WT/DS194/R, 29 June 2001, WTO Panel, unreported) …. 7.48, 7.49 United States — Preliminary Determinations with Respect to Certain Softwood Lumber from Canada (WT/DS236/R, 27 September 2002, WTO Panel, unreported) …. 7.48 United States — Section 211 Omnibus Appropriations Act of 1998 (WT/DS176/ AB/R, 2 January 2002, WTO Appellate Panel, unreported) …. 7.77, 7.81 United States — Tax Treatment for ‘Foreign Sales Corporations’ (WT/DS108/AB/R, 20 March 2000, WTO Appellate Panel, unreported) …. 7.48 — (art 21.5 EC), (WT/DS108/RW, 20 August 2001, WTO Panel, unreported …. 7.51 United Technologies International Inc v Magyar Legi Kozlekedesi Vallat (Malev Hungarian Airlines) (25 September 1992, Supreme Court of Hungary, CLOUT Case 53) …. 2.39 US-Definitive Anti-Dumping and Countervailing Duties on Certain Products from China (WT/DS379/AB/R, 11 March 2011, WTO Appellate Panel, unreported) …. 7.57, 7.58 US Steel Group v United States, 15 F Supp 2d 892 (1998) …. 7.57 Usinor Industeel v Leeco Steel Products Inc 209 F Supp 2d 880 …. 2.17, 2.20

V Valero Marketing & Supply Co v Greeni Oy 2007 WL 2064219 …. 2.199 Valkia Limited v United States and Carpenter Technology Corp 2004 WL 1375747 …. 2.89 Van Halderen v Canada 3000 Airlines Ltd [1994] BCJ No 2795 …. 3.362 Van Leer Australia Pty Ltd v Palace Shipping KK (1994) 180 CLR 337 …. 1.11 Venetico Marine SA v International General Insurance Company Limited and Nineteen Others [2013] EWHC 3644 …. 5.16 Verna Trading Pty Ltd v New India Assurance Co Ltd (1991) 1 VR 129 …. 5.103 Victoria Laundry Ltd v Newman Industries Ltd [1969] 1 AC 350 …. 2.70 Vimar Seguros y Reaseguros SA v M/V Sky Reefer (19 June 1995, Supreme Court of the United States) …. 3.105 Vision Systems Inc v Emc Corporation, 19 Mass L Rptr 139 (2005) …. 2.13 Visscher Enterprises Pty Ltd v Southern Pacific Insurance Co Ltd [1981] Qd R 561 …. 5.69, 5.71, 5.75 Vita Food Products Inc v Unus Shippings Co [1939] AC 277 …. 9.131 Vitol SA v Norelf Ltd [1995] 2 Lloyd’s Rep 128 …. 2.227, 2.228 Viva Vino Import Corp v Farnese Vini srl 2000 (WL 1224903, CLOUT Case 420) …. 2.20 — v — 2000 US Dist LEXIS 12347 …. 2.20, 9.118 Vogel v R and A Kohnstamm Ltd [1973] QB 133 …. 9.151 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; 97 ALR 124

…. 9.17, 9.24, 9.26, 9.31, 9.40–9.44, 9.47, 9.74, 9.78–9.80, 9.83–9.85, 9.97, 9.108, 9.112, 9.133

W Wait, Re [1927] 1 Ch 606 …. 1.57 Wayfoong Credit Ltd v Remoco (HK) Ltd [1983] 2 HKC 445 …. 4.48 Werner v Det Bergenske Dampskibsselskab (1926) 24 Ll L Rep 75 …. 3.93 Westcoast Food Brokers Ltd v The Hoyanger and Westfallarsen & Co A/S [1979] 2 Lloyd’s Rep 79 …. 1.36 Westpac Banking Corp v Royal Tongan Airlines (5 September 1996, Supreme Court of New South Wales) …. 3.404 — v ‘Stone Gemini’ [1999] FCA 434 …. 3.42 Westrac Equipment Pty Ltd v ‘Assets Venture’ [2002] FCA 404 …. 3.99 Westwood Shipping Lines v Geo International (24 June 1998, No T359-98, FCTD) …. 3.87 WFM Motors Pty Ltd v Maydwell [1996] 1 HKC 444 …. 9.153 Wheatland Tube Co v United States 495 F 3d 1355 (2007) …. 7.57 Whybrow v Howard Smith (1913) 17 CLR 1 …. 3.94 Wilensko v Fenwick [1938] 3 All ER 429 …. 1.69 William Holyman & Sons Pty Ltd v Foy & Gibson Pty Ltd (1945) 73 CLR 622 …. 3.106, 3.130 Williams v The Society of Lloyd’s [1994] 1 VR 274 …. 1.11 Wilson v Darling Island Stevedoring and Lighterage Co Ltd (1955) 95 CLR 43 …. 3.144 Wimble, Sons & Co v Rosenberg [1913] 3 KB 743 …. 1.72

Winkenson Impex Co Ltd v Haverton Shipping Ltd [1985] HKLR 141 …. 3.53 Wood v Associated National Insurance Co Ltd [1984] 1 Qd R 507 …. 5.84 Word Publishing Co Ltd, Re [1992] 2 Qd R 336 …. 9.49, 9.160 WS China Import GmbH v Longkou Guanyuan Food Company (2004, CISG W3 database) …. 2.122 Wuhan Guoyu Logistics Group Co Ltd v Emporiki Bank of Greece SA [2014] 1 Lloyd’s Rep 273 …. 4.183 Wyrttembergische Milchverwertung- Sydmilch-AG v Salvatore Ugliola [1969] ECR 363 …. 8.23

X X Construction Company v Trading Company of Shuchang (1992, unreported) …. 1.103

Y Yeoman Credit Ltd v Gregory [1963] 1 All ER 245 …. 4.54 Yorkshire Insurance Co Ltd v Nisbet Shipping Co Ltd [1961] 2 All ER 487 …. 5.106

Z Zapata Hermanos Sucesores SA v Hearthside Baking Co, Inc 2001 US Dist LEXIS 15191 (2001) …. 2.177 — v Hearthside Baking Company Inc d/b/a Maurice Lenell Cooky Company 313 F 3d 385 2002 …. 2.177

Zheng Hong Li Ltd Hong Kong v Jill Bert Ltd Swiss (1998) Jing Zhong Zi Di No 208 …. 2.4 Zhuguang Oil Company v Wuxi Zhongrui Group Corporation (2002, CISG W3 database) …. 2.18 Zicherman v Korean Air Lines Co 133 L Ed 596 (1996) …. 3.363 Zivilgericht des Kantons Basel-Stadt (P4 1996/ 00448, 3 December 1997, CLOUT Case 221) …. 2.142

Table of Statutes References are to paragraphs; bold references are extracted cases

COMMONWEALTH Admiralty Act 1988 …. 9.106 s 4 …. 9.105 s 5 …. 9.105 s 9 …. 9.105 Air Navigation Act 1920 …. 3.9, 3.222 Arbitration Act 1974 …. 9.204 Arbitration (Foreign Awards and Agreements) Act 1974 s 7(2) …. 9.204 Banking Act 1959 …. 1.11 Bills of Exchange Act 1909 …. 1.11, 4.12, 4.27, 4.38, 4.70, 4.155, 4.166, 4.167 Pt I …. 4.13 Pt II …. 4.13, 4.14, 4.16 Pt II, Div 1 …. 4.14 Pt II, Div 2 …. 4.14

Pt II, Div 3 …. 4.14 Pt II, Div 4 …. 4.14 Pt II, Div 5 …. 4.14 Pt II, Div 6 …. 4.14 Pt II, Div 7 …. 4.14 Pt II, Div 8 …. 4.14 Pt II, Div 9 …. 4.14 Pt II, Div 10 …. 4.14 Pt II, Div 11 …. 4.14 Pt III …. 4.13, 4.15 Pt III, Div 1 …. 4.15 Pt III, Div 2 …. 4.15 Pt III, Div 3 …. 4.15 Pt IV …. 4.13, 4.16 Pt V …. 4.13 s 4 …. 4.17 s 8 …. 4.28, 4.37, 4.39, 4.40 s 8(2) …. 4.41 s 8(4)(a) …. 4.161 s 10 …. 4.43 s 11 …. 4.165 s 12(2) …. 4.45 s 13 …. 4.46 s 13(1) …. 4.46, 4.48

s 14(1) …. 4.56 s 14(2) …. 4.56 s 15 …. 4.32, 4.54 s 16 …. 4.54 s 22(2) …. 4.57 s 24(2) …. 4.57 s 24(3) …. 4.57 s 24(4) …. 4.57 s 26(1) …. 4.32, 4.61 s 26(2) …. 4.63 s 28 …. 4.66 s 28(1) …. 4.66 s 28(2) …. 4.66 s 28(3) …. 4.66 s 31 …. 4.36, 4.66 s 31(1) …. 4.66, 4.67 s 31(2) …. 4.67 s 33 …. 4.36 s 34 …. 4.44, 4.49 s 36(2) …. 4.48 s 36(3) …. 4.48 s 39(1) …. 4.48 s 39(2) …. 4.48 s 39(4) …. 4.48

s 40 …. 4.164 s 43(1)(a) …. 4.50 s 43(1)(b) …. 4.50 s 44 …. 4.59, 4.61–4.63, 4.170 s 46 …. 4.62 s 46(3) …. 4.64 s 47 …. 4.32 s 49(1) …. 4.58 s 49(2) …. 4.58 s 49(3) …. 4.58 s 50 …. 4.32, 4.68 s 52 …. 4.32 s 58 …. 4.61 s 59 …. 4.65, 4.66 s 64 …. 4.68 s 64(1) …. 4.68 s 77 …. 4.31 s 77A …. 4.31 s 89 …. 4.43, 4.71, 4.72, 4.177 s 95 …. 4.16 Carriage of Goods by Sea Act 1991 …. 1.11, 3.18, 3.26, 3.43, 3.205, 3.213, 9.71 Pt 1 …. 3.201 Pt 2 …. 3.201 Pt 3 …. 3.201

Pt 4 …. 3.201 s 2 …. 3.216 s 3 …. 3.206 s 3(2)(a) …. 3.206 s 4 …. 3.206 s 7 …. 3.206, 3.214 s 7(2) …. 3.211 s 7(2)(a) …. 3.206, 3.207, 3.209 s 8 …. 3.206 s 11 …. 3.215–3.221, 9.53 s 11A …. 3.216 s 11(1) …. 3.217, 3.218, 3.219, 9.53 s 11(2) …. 3.217, 3.219, 3.220 s 11(3) …. 3.217 Sch 1 …. 3.23, 3.200, 3.204, 3.205, 3.210, 3.212 Sch 1A …. 3.23, 3.29, 3.200, 3.210, 3.220 Sch 2 …. 3.19 Cheques and Payment Orders Act 1986 …. 4.12 Civil Aviation (Carriers’ Liability) Act 1959 …. 1.11, 3.296 Pt IA …. 3.403, 3.405 Pt II …. 3.403, 3.405 Pt III …. 3.403, 3.405 Pt IIIA …. 3.403 Pt IIIC …. 3.403

Pt IV …. 3.403, 3.405 Pt IVA …. 3.405 Pt V …. 3.405 s 31 …. 3.405 s 41A …. 3.405 Sch 1 …. 3.403 Sch 1A …. 3.403 Sch 2 …. 3.403 Sch 3 …. 3.382, 3.403 Sch 5 …. 3.403 Commercial Arbitration Act 1984 s 48 …. 3.137 Commonwealth of Australia Constitution 1901 s 51 …. 1.43, 2.275 s 51(i) …. 1.43 s 51(xiii) …. 1.43 s 51(xiv) …. 1.43 s 51(xvi) …. 1.43 s 51(xx) …. 1.43 s 51(xxix) …. 1.43 s 92 …. 1.45 s 109 …. 1.43, 2.275 Competition and Consumer Act 2010 …. 1.34, 1.40, 1.82, 3.201, 7.102 Pt VA …. 2.20

Pt V, Div 1 …. 2.276 Pt X …. 1.11 s 5 …. 1.56 s 55 …. 2.100 s 66 …. 2.276 s 68 …. 2.276 s 95A …. 1.14 Sch 2 Ch 3 …. 1.56 Corporations Law Pt 5.3A …. 2.20 Customs Act 1901 s 269TJ …. 7.46 Financial Transaction Reports Act 1988 …. 4.12 Foreign Acquisitions and Takeovers Act 1975 …. 1.11, 6.35 s 10 …. 6.21 Foreign Antitrust Judgements (Restriction of Enforcement) Act 1979 …. 7.101 Foreign Judgments Act 1991 …. 9.49, 9.155, 9.164, 9.165 s 5 …. 9.161 s 5(1) …. 9.159 s 6 …. 9.154, 9.158, 9.161 s 6(3) …. 9.154, 9.156 s 6(8) …. 9.157 s 7 …. 9.162 s 8 …. 9.163

s 17 …. 9.154 Foreign Proceedings (Excess of Jurisdiction) Act 1984 …. 7.101, 9.155, 9.157 Insurance Act 1984 …. 9.14, 9.122 Insurance Contracts Act 1984 s 17 …. 5.37 s 19 …. 5.37 s 43(1) …. 9.123 International Arbitration Act 1974 Sch 1 …. 9.157 Sch 2 …. 9.168, 9.199 Sch 3 …. 9.184 International Arbitration Act 1991 …. 1.11 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 9.139 Marine Insurance Act 1909 …. 1.11, 3.199, 5.22, 5.34, 5.43, 5.57, 5.63, 5.104 s 3 …. 5.35 s 8 …. 5.46 s 9 …. 5.44, 5.45 s 10 …. 5.47 s 11 …. 5.35 s 12 …. 5.37 s 15 …. 5.80 s 23 …. 5.65 s 24 …. 5.69, 5.71

s 24(2) …. 5.69 s 24(3) …. 5.69 s 25 …. 5.25, 5.78 s 27 …. 5.27, 5.29 s 31 …. 5.54 s 31(2) …. 5.54 s 33 …. 5.52 s 33(2) …. 5.51 s 34 …. 5.51 s 35 …. 5.56 s 56(1) …. 5.105 s 56(2) …. 5.105 s 59 …. 5.78 s 61 …. 5.84, 5.85, 5.88, 5.90 s 61(1) …. 5.85 s 61(2)(a) …. 5.41, 5.90 s 61(2)(b) …. 5.90 s 61(2)(c) …. 5.40, 5.72, 5.90 s 62 …. 5.91 s 63 …. 5.91 s 66 …. 5.91, 5.92 s 66(1) …. 5.91, 5.92 s 66(2) …. 5.92 s 66(2)(a) …. 5.93

s 66(2)(b) …. 5.93 s 67 …. 5.94 s 69 …. 5.94 s 70(1) …. 5.95 s 70(2) …. 5.95 s 72(2) …. 5.95 s 72(4) …. 5.95 s 73(1) …. 5.96 s 74 …. 5.97 s 75 …. 5.98 s 76 …. 5.98 s 77 …. 5.98 s 78 …. 5.101 s 79 …. 5.97 s 83 …. 5.99 s 84 …. 5.99–5.101 s 85 …. 5.106 s 86 …. 5.107 National Security Act 1939–43 …. 9.90 National Security (Aliens Services) Regulations reg 7 …. 9.90 Sea-Carriage of Goods Act 1904 s 5 …. 3.106 Sea-Carriage of Goods Act 1924 …. 3.201

s 9 …. 3.216, 9.71, 9.266 Securities Industry Act 1980 …. 1.11 Service and Execution of Process Act 1901 …. 9.157 Service and Execution of Process Act 1992 …. 9.155, 9.157 Trade Practices Act 1974 …. 9.122, 9.125 s 52 …. 1.11, 9.94

AUSTRALIAN CAPITAL TERRITORY Court Procedures Rules 2006 (ACT) …. 9.155 Sale of Goods Act 1954 s 23 …. 1.49, 1.53 s 25 …. 1.60 s 36 …. 1.71 s 41 …. 1.60 s 57 …. 1.84 ss 17–20 …. 1.76, 1.92 ss 33–41 …. 1.63 ss 42–53 …. 1.84 ss 54–57 …. 1.92 Sale of Goods (Vienna Convention) Act 1987 …. 2.274

NEW SOUTH WALES Civil Procedure Act 2005 s 38 …. 9.265

Contracts Review Act 1980 …. 1.34 Foreign Judgments Act 1973 …. 9.155, 9.166 s 5(3) …. 9.159 s 6 …. 9.158, 9.165 s 8 …. 9.165 s 12 …. 9.165 Sale of Goods Act 1923 s 5 …. 1.14 s 19 …. 2.113 s 20 …. 2.113 s 20(2)(c) …. 2.106 s 23 …. 1.49, 1.53 s 23(3) …. 1.55 s 25 …. 1.60 s 28 …. 2.80 s 33(4) …. 1.10 s 35 …. 1.71, 1.72 s 40 …. 1.60 s 50A …. 3.37, 3.63 ss 17–20 …. 1.76, 1.92 ss 32–40 …. 1.63 ss 41–52 …. 1.84 ss 53–56 …. 1.92 ss 55–56 …. 1.84

Sale of Goods (Vienna Convention) Act 1986 …. 2.274

NORTHERN TERRITORY Sale of Goods Act 1972 s 23 …. 1.49, 1.53 s 25 …. 1.60 s 35 …. 1.71 s 40 …. 1.60 ss 17–20 …. 1.76, 1.92 ss 32–40 …. 1.63 ss 41–52 …. 1.84 ss 53–56 …. 1.92 ss 55–56 …. 1.84 Sale of Goods (Vienna Convention) Act 1987 …. 2.274 Supreme Court Rules …. 9.155

QUEENSLAND Reciprocal Enforcement of Judgment Act 1959 s 5 …. 9.160 s 7 …. 9.160 Sale of Goods Act 1896 …. 1.43, 2.275 s 20 …. 1.49, 1.53 s 23 …. 1.60 s 34 …. 1.71

s 39 …. 1.60 s 50(2) …. 1.87 s 55 …. 1.84 ss 15–18 …. 1.76, 1.92 ss 31–39 …. 1.63 ss 40–51 …. 1.84 ss 52–55 …. 1.92 Sale of Goods (Vienna Convention) Act 1986 …. 2.274 Supreme Court (Foreign Judgments) Rules Order 1993 …. 9.155, 9.164

SOUTH AUSTRALIA Foreign Judgments Act 1971 …. 9.155 Limitation of Actions Act 1936 …. 9.113 Sale of Goods Act 1895 …. 1.39, 1.43, 2.275 s 15 …. 1.81 s 18 …. 1.49, 1.53 s 20 …. 1.60 s 32 …. 1.71 s 37 …. 1.60 s 53 …. 1.84 ss 12–15 …. 1.76, 1.92 ss 29–37 …. 1.63 ss 38–49 …. 1.84 ss 50–53 …. 1.92

Sale of Goods (Vienna Convention) Act 1986 …. 2.274

TASMANIA Sale of Goods Act 1896 …. 1.43, 2.275 s 9 …. 1.38 s 23 …. 1.49, 1.53 s 25 …. 1.60 s 37 …. 1.71 s 42 …. 1.60 s 58 …. 1.84 ss 17–20 …. 1.76, 1.92 ss 34–42 …. 1.63 ss 43–54 …. 1.84 ss 55–58 …. 1.92 Sale of Goods (Vienna Convention) Act 1987 …. 2.274 Supreme Court Rules 2000 …. 9.155

VICTORIA Companies (Victoria) Code …. 1.11 Fair Trading Act 1985 s 11 …. 1.11 Foreign Judgments Act 1962 …. 9.155 Goods Act 1958 …. 2.6 Pt IV …. 1.40

s 23 …. 1.49, 1.53 s 24 …. 2.241 s 25 …. 1.60 s 39 …. 1.71 s 44 …. 1.60 s 60 …. 1.84 s 65 …. 3.83 s 65(1) …. 3.80 s 66 …. 3.37, 3.63 s 73 …. 3.37, 3.63 s 88 …. 2.107 s 90 …. 2.100 ss 17–20 …. 1.76, 1.92 ss 36–44 …. 1.63 ss 45–56 …. 1.84 ss 57–60 …. 1.92 Instruments Act 1958 s 126 …. 4.41 Sale of Goods (Vienna Convention) Act 1987 …. 2.274

WESTERN AUSTRALIA Rules of Supreme Court 1971 …. 9.155 Sale of Goods Act 1895 …. 1.43, 1.78, 2.275 s 4 …. 1.38

s 18 …. 1.49, 1.53 s 20 …. 1.60 s 32 …. 1.71 s 37 …. 1.60 s 53 …. 1.84 ss 12–15 …. 1.76, 1.92 ss 29–37 …. 1.63 ss 38–49 …. 1.84 ss 50–53 …. 1.92 Sale of Goods (Vienna Convention) Act 1986 …. 2.274 Transport Co-ordination Act 1933 …. 1.45

UNITED KINGDOM Bills of Exchange Act 1882 …. 4.12 s 3 …. 4.28 Carriage of Goods Act 1992 s 5(2)(b) …. 4.108 Carriage of Goods by Sea Act 1992 …. 4.108 Foreign Judgments (Reciprocal Enforcement) Act 1933 …. 9.49, 9.156 Marine Insurance Act 1906 …. 5.4, 5.22, 5.30, 5.34 s 7 …. 5.6, 5.7 s 9 …. 5.6 Sale of Goods Act 1893 …. 1.42, 1.55, 2.103, 2.274 s 32 …. 1.72

Sale of Goods Act 1979 …. 1.42, 2.274 Statute of Merchants 1283 (Statute of Acton Burnell) …. 9.55

AUSTRIA Commercial Code art 377 …. 2.122

CANADA Carriage by Air Act …. 3.290 Commercial Arbitration Act 1985 s 5 …. 3.198 s 6 …. 3.198 Federal Court Act 1985 s 3 …. 3.198 s 50 …. 3.198 Foreign Investment Review Act 1985 …. 6.66 Sale of Goods Act …. 1.13 Transportation of Dangerous Goods Act …. 3.24 Transportation of Dangerous Goods Regulation …. 3.24

CHINA Code of Contract Law …. 1.12, 1.100, 1.112, 1.130, 1.142 art 2 …. 1.101, 1.106 art 9 …. 1.101, 1.102

art 10 …. 1.108 art 11 …. 1.109 art 15 …. 1.110 art 16 …. 1.109 art 20(2) …. 1.111 art 22 …. 1.10 art 25 …. 1.113 art 32 …. 1.47, 1.113 art 33 …. 1.47, 1.113 art 34 …. 1.113 art 35 …. 1.113 art 38 …. 1.106 art 39 …. 1.113 art 40 …. 1.113 art 48 …. 1.102 art 50 …. 1.103 art 52 …. 1.113 art 53 …. 1.113 art 61 …. 1.123 art 62 …. 1.123 art 62(1) …. 1.118–1.120 art 68 …. 1.125, 1.126 art 69 …. 1.126 art 76 …. 1.129

art 93 …. 1.128 art 94 …. 1.128, 1.131, 1.132 art 107 …. 1.135 art 109 …. 1.139, 1.140 art 110 …. 1.139–1.141 art 111 …. 1.139, 1.141 art 112 …. 1.135 art 113 …. 1.135 art 114 …. 1.134, 1.135 art 115 …. 1.136 art 116 …. 1.136 art 119 …. 1.137 art 132 …. 1.114 art 133 …. 1.114 art 134 …. 1.114 art 138 …. 1.121 art 141 …. 1.121 art 142 …. 1.115 art 143 …. 1.115 art 144 …. 1.115 art 145 …. 1.115 art 146 …. 1.115 art 147 …. 1.116, 1.117 art 148 …. 1.116, 1.117

art 149 …. 1.116 art 150 …. 1.114 art 151 …. 1.114 art 153 …. 1.118 art 156 …. 1.118 art 157 …. 1.121 art 158 …. 1.121 art 159 …. 1.122, 1.123 art 160 …. 1.122 art 161 …. 1.122, 1.123 art 162 …. 1.121 art 166 …. 1.121, 1.133 art 167 …. 1.123 art 168 …. 1.118 art 169 …. 1.119, 1.120 art 175 …. 1.14, 1.114 arts 10–34 …. 1.107 arts 47–50 …. 1.101 arts 112–116 …. 1.135 arts 142–149 …. 1.115 Foreign Economic Contract of China …. 1.47 General Principles of Civil Law art 11 …. 1.102 art 12 …. 1.102

art 13 …. 1.102 art 36 …. 1.103 art 37 …. 1.103 art 50 …. 1.103 art 51 …. 1.103 art 54 …. 1.106 art 142 …. 1.117 arts 9–19 …. 1.101 arts 36–53 …. 1.101 Joint Equity Venture Law art 4 …. 6.20 Maritime Law 1993 …. 5.22, 5.30 s 42 …. 3.26 s 70 …. 3.155

FRANCE Civil Code art 1151-1 …. 2.240 art 1315 …. 2.97 art 1641 …. 2.267

GERMANY Civil Code art 287 …. 2.191

art 288 …. 2.214 art 387 …. 2.194 art 478 …. 2.194 art 487 …. 2.194 art 812(1) …. 2.273

HONG KONG Bills of Exchange (Amendment) Ordinance 1983 s 3 …. 4.67 Bills of Exchange Ordinance (Cap 19, HK) s 26(1) …. 4.66, 4.67 s 26(2) …. 4.67 s 26A …. 4.67 Carriage of Goods by Sea (Hong Kong) Order 1508 of 1980 …. 3.71, 9.46 Carriage of Goods by Sea (Hong Kong) Order 1980 …. 9.146 Hong Kong Carriage of Goods by Sea Ordinance 1964 …. 9.146

INDIA Arbitration Act 1940 …. 9.239

ITALY Codice Civile art 1284 …. 2.191

NEW ZEALAND Carriage of Goods Act 1979 …. 3.29 art 2 …. 3.26 Law Commission Act 1985 s 11A …. 3.216 Sale of Goods Act 1908 s 15 …. 1.80 s 16 …. 1.80

SWEDEN Swedish Act No 28 of 1915 …. 2.36

UNITED STATES OF AMERICA Carriage of Goods by Sea Act 1936 …. 3.71, 3.105, 3.107, 3.139, 9.46, 9.70 s 1(c) …. 3.124 Foreign Sovereign Immunities Act 1976 …. 6.92 Harter Act 1893 …. 3.108 s 3(8) …. 3.106 Omnibus Appropriation Act 1998 s 211(a)(2) …. 7.81 s 211(b) …. 7.81 Tariff Act 1816 …. 7.36 28 United States Code

§1927 …. 2.177 Uniform Commercial Code …. 2.7 s 2-314(2) …. 2.103

INTERNATIONAL AAA (American Arbitration Association) International Dispute Resolution Procedures (Including Mediation and Arbitration Rules) 2009 (AAA Rules) …. 9.223, 9.224 art 1 …. 9.223 art 2 …. 9.223, 9.245 art 2(2) …. 9.243 art 3 …. 9.223, 9.245 art 4 …. 9.223, 9.245 art 5 …. 9.223 art 6 …. 9.223 art 7 …. 9.223 art 8 …. 9.223 art 9 …. 9.223 art 10 …. 9.223 art 11 …. 9.223 arts 12–35 …. 9.223 art 15 …. 9.245 art 16 …. 9.245 art 19 …. 9.247, 9.248 art 21 …. 9.248

art 27 …. 9.254 art 31 …. 9.255 Additional Protocol No 1 (amending Warsaw Convention) 1996 …. 3.10, 3.239–3.241, 3.380 Additional Protocol No 2 (amending Warsaw Convention) 1996 …. 3.10, 3.239–3.241, 3.380 Additional Protocol No 3 (amending Warsaw Convention) (Montreal No 3) 1975 …. 3.10, 3.239–3.241, 3.245, 3.263, 3.356, 3.357 Additional Protocol No 4 (amending Warsaw Convention) (Montreal No 4) 1998 …. 3.10, 3.239–3.241, 3.245, 3.259, 3.260, 3.262, 3.263, 3.333, 3.334, 3.336, 3.337, 3.339–3.349, 3.356, 3.357, 3.373, 3.378–3.380, 3.403 art 5 …. 3.259, 3.335 arts 5–8 …. 3.259 art 6 …. 3.259 art 7 …. 3.259 art 8 …. 3.259 art 9 …. 3.259 art 10 …. 3.259 art 11 …. 3.259 art 12 …. 3.259 art 13 …. 3.259 art 14 …. 3.259 art 15 …. 3.259 art 16 …. 3.259 Additional Protocol to the CMR Concerning the Electronic

Consignment Note 2008 …. 3.14, 3.452, 3.453 Agreement on Agriculture …. 7.4 Agreement Establishing the Multilateral Trade Organization (now World Trade Organization) …. 7.21 Agreement on Government Procurement (PTA) …. 7.3, 7.4, 7.7, 7.11, 7.86 Agreement on Implementation of Article VII of GATT 1994 …. 7.4, 7.59 Agreement on Import Licensing Procedures …. 7.4 Agreement on Preshipment Inspection …. 7.4 Agreement on Rules of Origin …. 7.4 Agreement on Safeguards …. 7.4 Agreement on Subsidies and Countervailing Measures (SCM Agreement) …. 7.4, 7.49 art 1 …. 7.48, 7.50–7.53, 7.55 art 1.1 …. 7.48 art 1.1(a)(1)(i) …. 7.48 art 1.1(b) …. 7.48 art 2 …. 7.50–7.53, 7.55 art 2.1(b) …. 7.55 art 2.1(c) …. 7.55 art 2.3 …. 7.50, 7.55 art 3 …. 7.50–7.52, 7.55 art 3.1 …. 7.51 art 5 …. 7.52, 7.55 art 5(a) …. 7.52

art 5(c) …. 6.83 art 6 …. 7.52 art 8 …. 7.53, 7.54, 7.55 art 8.1 …. 7.53 art 8.1(a) …. 7.52 art 8.2 …. 7.53 art 8.2(a) …. 7.53 art 8.2(b) …. 7.53 art 8.2(c) …. 7.53 art 10 …. 7.58 art 11.2 …. 7.52 art 19.1 …. 7.58 art 19.2 …. 7.58 art 19.3 …. 7.58 art 19.4 …. 7.58 art 21.1 …. 7.58 art 24.1 …. 7.56 art 24.3 …. 7.56 Annex I …. 7.51 Annex II …. 7.51 Annex III …. 7.51 Annexes I–III …. 7.48 Agreement on Technical Barriers to Trade …. 7.4 Agreement on Textiles and Clothing …. 7.4

Agreement on the Application of Sanitary and Phytosanitary Measures …. 7.4 Agreement on Trade-Related Investment Measures …. 7.4 Agreement on Trade in Civil Aircraft (PTA) …. 7.3, 7.4, 7.7, 7.11, 7.86 Agreement on Trade-Related Aspects of Intellectual Property Rights 1993 (TRIPS) …. 7.1, 7.2, 7.4, 7.10, 7.11, 7.75, 7.76, 7.82, 7.106 art 2 …. 7.78 art 2.1 …. 7.77 art 3 …. 7.80 art 3(1) …. 7.79, 7.80 art 4 …. 7.81 art 9 …. 7.78 art 9(1) …. 7.78 art 11 …. 7.83 art 35 …. 7.78 art 65 …. 7.79, 7.84 Agreement on Trade-Related Investment Measures (TRIMs) 1993 …. 6.3–6.6, 6.38, 6.67, 6.70, 6.72, 6.73, 6.76, 6.78–6.80, 7.2 art 1 …. 6.68, 6.74, 6.75 art 2 …. 6.68, 6.74, 6.77, 6.82, 6.83 art 3 …. 6.74, 6.81 art 4 …. 6.74, 6.81 art 5 …. 6.74, 6.82 art 6 …. 6.74 art 7 …. 6.74

art 8 …. 6.74 art 9 …. 6.74 Agreement Relating to Liability Limitations of the Warsaw Convention and the Hague Protocol (the Montreal Agreement) …. 3.243 Agreement relating to the Application of the European Conventions on International Community Arbitration 1962 …. 9.177 Anti-Dumping Agreement (Agreement on Implementation of Article VI of GATT 1994) …. 7.4, 7.19, 7.37 art 1 …. 7.39 art 2 …. 7.38, 7.40–7.42 art 2.1 …. 7.38, 7.41, 7.42 art 2.2 …. 7.38, 7.42 art 2.2.1 …. 7.44 art 2.3 …. 7.45 art 2.4 …. 7.42 art 2.6 …. 7.40 art 5 …. 7.39 art 6 …. 7.45 art 9.2 …. 7.58 art 16.1 …. 7.47 art 16.3 …. 7.47 art 16.4 …. 7.47 APEC Declaration on Climate Change, Energy Security and Clean Development …. 8.29 Arbitration Rules of China International Economic and Trade Arbitration Commission …. 9.177

ASEAN Declaration 1967 …. 8.35 Australia–China Investment Protection Treaty 1994 …. 6.91 Australia–New Zealand Closer Economic Relations Trade Agreement 1983 (ANZCERTA) …. 8.55, 8.57–8.59 art 1(c) …. 8.55 art 2 …. 8.55 art 4(1)–4(4) …. 8.56 art 4(9) …. 8.56 art 4(10) …. 8.56 art 4(11) …. 8.56 art 4(12) …. 8.56 art 5 …. 8.56 art 8 …. 8.56 art 9 …. 8.56 art 11 …. 8.56 art 15 …. 8.56 art 16 …. 8.56 art 18 …. 8.56 art 21 …. 8.56 art 22 …. 8.56 Australia–New Zealand Free Trade Agreement 1965 …. 8.55 Australia–New Zealand Trade Agreement 1993 …. 8.55 Berne Convention for the Protection of Literary and Artistic Works 1886 …. 7.75 Berne Convention for the Protection of Literary and Artistic Works

1971 …. 7.78, 7.82 arts 1–21 …. 7.78 Bretton Woods Agreement 1944 …. 7.3 Brussels Protocol Amending the Hague Rules Relating to Bills of Lading 1968 (Hague-Visby Rules) …. 3.7, 3.17, 3.19, 3.21, 3.25, 3.26, 3.32, 3.38, 3.42, 3.51, 3.56, 3.58, 3.71, 3.78, 3.89, 3.90, 3.91, 3.94, 3.102, 3.108, 3.118, 3.127, 3.135, 3.148, 3.149, 3.162, 3.163, 3.165, 3.175, 3.178–3.180, 3.191, 3.192, 3.193, 3.200, 3.201, 3.205, 3.210, 3.212–3.215, 3.219, 3.244, 3.319, 3.346, 3.497, 3.509, 9.46 art 1 …. 3.97 arts 1–10 …. 3.18 art 1(a) …. 3.28 art 1(b) …. 3.22 art 1(d) …. 3.134 art 1(e) …. 3.88, 3.167 art 1(1) …. 3.23 art 1(1)(b) …. 3.23 art 1(1)(f) …. 3.220 art 1(1)(g) …. 3.220 art 3 …. 3.70, 3.131, 3.150 art 3(1) …. 3.450, 3.93, 3.95, 3.97, 3.113 art 3(2) …. 3.99, 3.159 art 3(3) …. 3.48, 3.62, 3.100, 3.101 art 3(3)(a) …. 3.48 art 3(3)(b) …. 3.48 art 3(3)(c) …. 3.48

art 3(4) …. 3.48, 3.50, 3.151, 3.341 art 3(5) …. 3.48, 3.101, 3.121, 3.151, 3.152, 3.160 art 3(6) …. 3.136, 3.137 art 3bis(6) …. 3.138 art 3(7) …. 3.54, 3.59, 3.100 art 3(8) …. 3.92, 3.104, 3.105–3.107, 3.130, 3.138, 3.208 art 4 …. 3.70, 3.104, 3.112, 3.150 art 4bis …. 3.139, 3.140 art 4(1) …. 3.113 art 4(2) …. 3.111, 3.112, 3.113 art 4bis(2) …. 3.138, 3.139 art 4(2)(a) …. 3.115 art 4(2)(m) …. 3.112 art 4(2)(n) …. 3.112 art 4(2)(q) …. 3.109 art 4(3) …. 3.122, 3.154, 3.155, 3.160 art 4bis(3) …. 3.139 art 4(4) …. 3.123 art 4bis(4) …. 3.139 art 4(5) …. 3.50 art 4(5)(a) …. 3.126, 3.130, 3.132, 3.139, 3.147 art 4(5)(d) …. 3.128 art 4(5)(e) …. 3.131, 3.139, 3.147 art 4(5)(f) …. 3.117, 3.126

art 4(5)(g) …. 3.130 art 4(5)(h) …. 3.117 art 4(6) …. 3.117, 3.121, 3.153–3.155, 3.158, 3.160 art 5 …. 3.132, 3.208 art 6 …. 3.132, 3.208 art 7 …. 3.133, 3.208, 3.480 art 10 …. 3.202, 3.203, 3.206–3.209 art 10(6) …. 3.29 art 10(7) …. 3.29 art III r 2 …. 3.211 art IV …. 3.49 CER Trade in Services Protocol 1988 …. 8.57 Charter of the International Trade Organization 1948 (Havana Charter) …. 7.18 Chicago Convention on International Civil Aviation 1944 (Chicago Convention) 1947 …. 3.9, 3.13, 3.222, 3.226, 3.228, 3.231, 3.232, 3.234, 3.235, 3.391 art 1 …. 3.225 art 5 …. 3.227, 3.229 arts 5–16 …. 3.227 art 6 …. 3.227 art 7 …. 3.227 art 9 …. 3.227 art 10 …. 3.227 art 11 …. 3.227

art 12 …. 3.227 art 13 …. 3.227 art 14 …. 3.227 art 15 …. 3.227 art 16 …. 3.227 art 43 …. 3.224 arts 43–63 …. 3.224 art 44 …. 3.223 art 48 …. 3.224 art 50 …. 3.224 art 54 …. 3.224 art 83bis …. 3.222 China–Australia Free Trade Agreement (ChAFTA) …. 8.61–8.64 China International Economic and Trade Arbitration Commission (CIETAC) Financial Disputes Arbitrations Rules 2003 art 1 …. 9.227 art 2 …. 9.227 art 3 …. 9.227 art 10 …. 9.227 art 37 …. 9.254 art 51 …. 9.254 CMI (International Maritime Committee) Rules for Electronic Bills of Lading 1990 …. 3.74 Collection of Bills Agreement (1952–1979) …. 4.9 Convention and Statute on Freedom of Transit 1921 …. 3.407

Convention by the International Civil Aviation Organization (ICAO) …. 3.222–3.224, 3.228, 3.230, 3.235 Convention Concerning Customs Facilities for Touring 1954 …. 3.407 Convention Concerning International Carriage by Rail 1985 (COTIF) …. 3.14, 3.408–3.410, 3.413, 3.414, 3.435, 3.453, 3.483 art 1(2) …. 3.411 art 2(1) …. 3.411 art 5 …. 3.411 art 6 …. 3.411 art 7 …. 3.411 art 8 …. 3.411 art 9 …. 3.411 art 12 …. 3.412 Appendix A …. 3.406 Appendix B …. 3.406 Appendix C …. 3.406 Appendix D …. 3.406 Appendix E …. 3.406 Appendix F …. 3.406 Appendix G …. 3.406 Convention Establishing the Multinational Investment Guarantee Agency 1985 …. 6.38, 6.58 art 1 …. 6.59 art 5 …. 6.60 Convention Establishing World Intellectual Property Organization 1967 …. 7.75

Convention for the Settlement of Certain Conflict of Laws in Connection with Bills of Exchange and Promissory Notes 1930 …. 4.9 Convention for the Settlement of Certain Conflict of Laws in Connection with Cheques 1931 …. 4.9 Convention for the Unification of Certain Rules for International Carriage by Air 2003 (Montreal Convention) …. 3.8, 3.13, 3.391, 3.403 Ch 5 …. 3.392 art 1.3 …. 3.400 art 3 …. 3.394 art 4 …. 3.394 art 5 …. 3.394 art 7 …. 3.394, 3.399 art 11 …. 3.394 art 12 …. 3.402 art 13 …. 3.402 art 16 …. 3.402 art 17.1 …. 3.395 art 17.2 …. 3.395 art 18.1 …. 3.395 art 18.2 …. 3.395 art 18.3 …. 3.395 art 18.4 …. 3.395 art 19 …. 3.395 art 20 …. 3.396

art 21.1 …. 3.397 art 21.2(a) …. 3.397 art 22(3) …. 3.399 art 22.1 …. 3.397 art 22.2 …. 3.397 art 22.3 …. 3.397 art 22.5 …. 3.398 art 23 …. 3.399 art 36.2 …. 3.401 art 36.3 …. 3.401 art 38 …. 3.393 art 39 …. 3.400 art 40 …. 3.401 art 41 …. 3.401 art 55 …. 3.11 Convention for the Unification of Certain Rules relating to International Carriage by Air 1933 (Warsaw Convention) …. 3.8, 3.10, 3.11, 3.13, 3.14, 3.238–3.242, 3.245, 3.249, 3.253–3.256, 3.260, 3.261, 3.265, 3.266, 3.282, 3.284, 3.307, 3.313, 3.350, 3.373, 3.381–3.384, 3.389–3.391, 3.395, 3.396, 3.400, 3.403, 3.406, 3.477 Pt III …. 3.258, 3.259 art 1 …. 3.244, 3.246, 3.248, 3.308, 3.312, 3.392 art 1(1) …. 3.244 art 1(2) …. 3.246, 3.308 art 1(3) …. 3.247, 3.250, 3.293, 3.309 art 2 …. 3.308

art 2(1) …. 3.310 art 2(2) …. 3.310, 3.333 art 2(3) …. 3.333 art 3 …. 3.312, 3.334, 3.360, 3.366, 3.367, 3.374, 3.375, 3.376 arts 3–9 …. 3.311 art 3(1) …. 3.360 art 3(1)(c) …. 3.375 art 3(2) …. 3.359, 3.360, 3.376 art 4 …. 3.312, 3.361, 3.367, 3.376 art 4(1)(c) …. 3.376 art 4(2) …. 3.361, 3.376 art 4(3) …. 3.361 art 4(4) …. 3.361 art 5 …. 3.257, 3.258, 3.263, 3.267, 3.271, 3.279, 3.286, 3.315, 3.335 art 5(1) …. 3.267 art 5(2) …. 3.339 art 5(3) …. 3.335 arts 5–8 …. 3.263 arts 5–16 …. 3.257, 3.258, 3.259 art 6 …. 3.257, 3.258, 3.268, 3.271, 3.286, 3.314, 3.336 art 6(2) …. 3.318 art 6(3) …. 3.314 art 6(5) …. 3.267, 3.279 art 7 …. 3.257, 3.258, 3.269, 3.279, 3.337

art 7(a) …. 3.337 art 7(b) …. 3.337 art 8 …. 3.251, 3.257, 3.258, 3.264, 3.270, 3.288, 3.312, 3.315, 3.317, 3.318, 3.338, 3.394 art 8(c) …. 3.315, 3.316, 3.338 art 8(p) …. 3.288 art 9 …. 3.251, 3.257, 3.258, 3.262, 3.263, 3.264, 3.270, 3.316, 3.339 art 10 …. 3.257, 3.258, 3.279, 3.340 art 10(1) …. 3.279 art 10(2) …. 3.317 art 11 …. 3.257, 3.258, 3.286, 3.341 art 11(1) …. 3.264 art 11(2) …. 3.264 art 12 …. 3.257, 3.258, 3.271, 3.272, 3.277, 3.278 art 12(1) …. 3.286 art 12(3) …. 3.273, 3.274, 3.286 arts 12–16 …. 3.342 art 13 …. 3.257, 3.258, 3.272, 3.275, 3.277, 3.278 art 13(1) …. 3.286 art 13(2) …. 3.286 art 14 …. 3.257, 3.277, 3.278 art 15 …. 3.257, 3.258, 3.278, 3.318, 3.329, 3.342 art 15(1) …. 3.293 art 15(2) …. 3.258 art 15(3) …. 3.258, 3.264, 3.312, 3.318, 3.342

art 16 …. 3.257, 3.258, 3.280, 3.281 art 16(1) …. 3.280 art 16(2) …. 3.280 art 17 …. 3.297, 3.347, 3.363 arts 17–19 …. 3.297, 3.347 arts 17–30 …. 3.286, 3.287, 3.363 art 18 …. 3.285, 3.290, 3.297, 3.343, 3.347, 3.349, 3.351, 3.354, 3.365 art 18(1) …. 3.287, 3.300, 3.343 art 18(2) …. 3.285, 3.287, 3.343 art 18(3) …. 3.248, 3.285, 3.343 art 19 …. 3.288, 3.297, 3.347, 3.354, 3.364, 3.365 art 20 …. 3.298, 3.326, 3.327, 3.344, 3.349, 3.352, 3.362, 3.365, 3.377, 3.378, 3.380 art 20(1) …. 3.289, 3.300, 3.352, 3.364, 3.377, 3.378 art 20(2) …. 3.289, 3.311, 3.319, 3.368 art 21 …. 3.345, 3.364, 3.379 art 22 …. 3.270, 3.298–3.300, 3.320–3.323, 3.325, 3.326, 3.330, 3.331, 3.346, 3.349, 3.353, 3.356, 3.357, 3.369, 3.380, 3.386, 3.388 art 22(1) …. 3.364 art 22(2) …. 3.296, 3.300, 3.316, 3.320, 3.353, 3.361, 3.365 art 22(2)(a) …. 3.320, 3.357 art 22(2)(b) …. 3.320, 3.346, 3.357 art 22(2)(c) …. 3.357 art 22(3) …. 3.364 art 22(5) …. 3.322

art 22(6) …. 3.346 art 23 …. 3.296, 3.323, 3.327, 3.343, 3.364, 3.365, 3.388 art 23(1) …. 3.323 art 23(2) …. 3.323 art 24 …. 3.297, 3.347, 3.349, 3.354, 3.380 art 24(1) …. 3.354 art 24(2) …. 3.293, 3.347 art 25 …. 3.298, 3.299, 3.300, 3.321, 3.322, 3.324, 3.325, 3.326, 3.331, 3.348, 3.354, 3.364, 3.370, 3.371, 3.387 art 25A …. 3.326, 3.331, 3.348, 3.355, 3.371 art 25A(1) …. 3.355 art 25A(2) …. 3.355 art 25A(3) …. 3.348, 3.371 art 26 …. 3.302, 3.328, 3.332, 3.365, 3.372 art 26(2) …. 3.301, 3.328, 3.372 art 28 …. 3.304, 3.306 art 28(1) …. 3.303, 3.305 art 28(2) …. 3.306 art 29 …. 3.302, 3.365 art 29(2) …. 3.306 art 30 …. 3.295, 3.385 art 30(1) …. 3.292, 3.293, 3.294 art 30(3) …. 3.294 art 31 …. 3.248, 3.363, 3.482 art 31(2) …. 3.270

art 32 …. 3.251, 3.306 art 34 …. 3.252, 3.311 Convention for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier 1964 (Supplementary to the Warsaw Convention) (Guadalajara Convention 1961) …. 3.10, 3.239, 3.241, 3.242, 3.266, 3.383, 3.385, 3.389, 3.390, 3.403, 3.416 art 1 …. 3.382 art 1(b) …. 3.384 art 1(c) …. 3.384 art 2 …. 3.386 art 3 …. 3.386 art 4 …. 3.387 art 5 …. 3.387 art 6 …. 3.387 art 7 …. 3.387 art 9 …. 3.386, 3.388 art 9(1) …. 3.388 art 9(2) …. 3.388 art 9(3) …. 3.388 Convention on a Code of Conduct for Liner Conferences 1974 …. 3.7 Convention on Compensation for Damage Caused by Aircraft to Third Parties (Montreal 2009) …. 3.12 Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft (Montreal 2009) …. 3.12

Convention on Customs Treatment of Pool Containers Used in International Transport 1994 …. 3.16, 3.407 Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface 1952 (Rome Convention) …. 3.12 art 1 …. 5.114, 5.122, 5.124 art 2 …. 5.124 art 2(2) …. 5.123 art 2(3) …. 5.123 art 11 …. 5.114 art 11(1) …. 5.124, 5.126, 5.129 art 12 …. 5.126, 5.127 art 12(1) …. 5.126 art 12(2) …. 5.126 art 15(1) …. 5.114 Convention on International Interests in Mobile Equipment 2006 (Cape Town Convention) …. 3.12, 10.2, 10.5, 10.10–10.12 Ch III …. 10.9 Chs IV–VII …. 10.9 art 1(i) …. 10.6 art 1(j) …. 10.8 art 1(o) …. 10.6 art 2 …. 10.3, 10.6 art 2.2 …. 10.6 art 2.3 …. 10.3, 10.4 art 2(nn) …. 10.7

art 7 …. 10.7 art 11 …. 10.8 Convention on Road Traffic Customs Convention on Containers 1972 …. 3.407 Convention on Substantive Rules for Intermediated Securities …. 10.2 Convention on the Carriage of Goods by Sea 1978 (Hamburg Rules) …. 3.7 Convention on the Carriage of Goods by Sea 1992 (Hamburg Rules) …. 3.18, 3.21, 3.25, 3.35, 3.38, 3.40, 3.42, 3.56, 3.58, 3.78, 3.175, 3.191, 3.197, 3.200, 3.201, 3.206, 3.210, 3.220, 3.244, 3.346, 3.416, 3.497 art 1 …. 3.26, 3.28, 3.70 arts 1–26 …. 3.19 art 1(1) …. 3.34 art 1(2) …. 3.31, 3.34 art 1(3) …. 3.33, 3.34 art 1(4) …. 3.36 art 1(6) …. 3.22, 3.481 art 1(7) …. 3.41, 3.51, 3.63, 3.185 art 4(1) …. 3.19, 3.135 art 4(2) …. 3.176 art 5 …. 3.166, 3.179 art 5(1) …. 3.165, 3.167–3.169 art 5(2) …. 3.169 art 5(3) …. 3.170 art 5(5) …. 3.177 art 5(7) …. 3.178

art 6 …. 3.171, 3.173 art 6(1)(a) …. 3.179 art 6(1)(b) …. 3.179 art 8 …. 3.182 art 10 …. 3.34, 3.173, 3.481 art 10(1) …. 3.172 art 11 …. 3.481 art 12 …. 3.192 art 13 …. 3.193 art 14 …. 3.28, 3.51, 3.183, 3.184 arts 14–16 …. 3.183 art 14(3) …. 3.74 art 15 …. 3.183, 3.185 art 15(2) …. 3.54, 3.59 art 16 …. 3.51, 3.62, 3.183 art 16(1) …. 3.186 art 16(2) …. 3.187 art 16(3) …. 3.187 art 17 …. 3.195 art 17(1) …. 3.194 art 19 …. 3.188 art 19(5) …. 3.181 art 19(6) …. 3.174 art 19(7) …. 3.188

art 20 …. 3.180, 3.188, 3.199 art 22 …. 3.198, 3.216 art 22(1) …. 3.196 art 22(4) …. 3.196 art 22(6) …. 3.196 art 23 …. 3.189, 3.190, 3.196 art 23(3) …. 3.189 art 23(4) …. 3.190 art 24 …. 3.199 Convention on the Contract for the International Carriage of Goods by Road 1961 (CMR) …. 3.14, 3.406, 3.452, 3.457, 3.461, 3.469, 3.473 art 1 …. 3.454 art 1(1) …. 3.455 art 1(4) …. 3.455 art 1(5) …. 3.455 art 2 …. 3.484 art 2(1) …. 3.456 art 4 …. 3.458 art 5 …. 3.460 art 8 …. 3.460 art 9(1) …. 3.459 art 9(2) …. 3.459 art 10 …. 3.460 art 12 …. 3.464 art 12(1) …. 3.462

art 12(7) …. 3.463 art 13(1) …. 3.462, 3.465 art 14 …. 3.456 art 17 …. 3.467 art 17(1) …. 3.466 art 17(4) …. 3.467 art 23 …. 3.453, 3.468 art 23(1) …. 3.468 art 23(2) …. 3.468 art 24 …. 3.468 art 26 …. 3.468 art 29 …. 3.470, 3.471 art 30(1) …. 3.474 art 32 …. 3.474 art 32(2) …. 3.475 art 34 …. 3.464, 3.471 art 35 …. 3.464 art 36 …. 3.471 art 38 …. 3.472 Convention on the Contract for the International Carriage of Passengers and Luggage by Inland Waterway (CVN) …. 3.6 Convention on the Contract for the International Carriage of Passengers and Luggage by Road 1994 (CVR) …. 3.14, 3.406 Convention on the International Recognition of Rights in Aircraft 1953 (Geneva Convention) …. 3.12

Convention on the Law Applicable to Certain Rights in Respect of Securities Held …. 10.2 Convention on the Registration of Inland Navigation Vessels 1982 …. 3.6 Convention on the Stamp Laws in Connection with Bills of Exchange and Promissory Notes 1930 …. 4.9, 4.12 Convention on the Stamp Laws in Connection with Cheques 1931 …. 4.9, 4.12 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (Beijing 2010) …. 3.12 Convention on Transit Trade of Land-Locked States 1965 …. 3.407 Convention relating to the Limitation of the Liability of Owners of Inland Navigation Vessels (CLN) …. 3.6 Council Regulation (EC) 44/2001 s 5(1) …. 1.32 Council Regulations of 2000 (EU) (was Brussels Convention) …. 9.88, 9.104 Customs Convention Concerning Spare Parts Used for Repairing European Wagons 1958 …. 3.407 Customs Convention on the International Transport of Goods Under Cover of TIR Carnets 1975 …. 3.407 Customs Convention on the Temporary Importation for Private Use of Aircraft and Pleasure Boats 1956 …. 3.407 Customs Convention on the Temporary Importation of Commercial Road Vehicles 1956 …. 3.407 Customs Convention on the Temporary Importation of Private Road Vehicles 1954 …. 3.407 EU Directive on Financial Collateral Arrangements (EU 2012 Directive)

art 2.1(a) …. 10.23 art 2.1(b) …. 10.23 art 2.1(c) …. 10.23 art 4 …. 10.23 art 7 …. 10.23 European Agreement on Important International Combined Transport Lines and Related Installations 1993 (AGTC) art 1(a) …. 3.15 European Atomic Energy Community Treaty (Euratom Treaty) (Treaty of Rome) …. 8.5, 8.7 art 220 …. 9.177 European Coal and Steel Community Treaty 1952 (ECSC) …. 8.5 European Community Treaty (formerly the EEC Treaty) art 8A …. 8.23 art 9 …. 8.22, 8.23 art 10 …. 8.23 art 12 …. 8.22 art 13 …. 8.22 art 16 …. 8.22 art 18 …. 8.23 art 19 …. 8.23 art 23 …. 8.23 art 24 …. 8.23 art 30 …. 8.22 art 32 …. 8.22

art 33 …. 8.22 art 34 …. 8.22 art 36 …. 8.22 art 48(2) …. 8.23 arts 52–57 …. 8.22 art 58 …. 8.22 arts 59-63 …. 8.22 art 95 …. 8.22 art 115 …. 8.22 European Convention on Customs Treatment of Pallets Used in International Transport 1960 …. 3.407 European Convention on International Commercial Arbitration 1961 …. 9.168, 9.177 European Economic Community Treaty (EEU Treaty) (Treaty of Rome) 1957 …. 8.5, 8.7 European Economic Community Treaty (ETreaty on EU) …. 8.5 European Union (Brussels) Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968 art 5(1) …. 2.17, 2.79 European Union Convention on the Elimination of Double Taxation in Connection with the Adjustment of Profits of Associated Enterprises 1990 (EU Arbitration Convention) …. 9.177 Final Act Embodying the Result of the Uruguay Round of Multilateral Trade Negotiations 1993 …. 7.2, 7.4 art 5 …. 7.16 Framework Agreement on Comprehensive Economic Co-Operation Between ASEAN and China 2002 …. 8.38

General Agreement on Tariffs and Trade (GATT) 1947 …. 7.5, 7.11, 7.16–7.24, 7.75, 7.93, 8.24, 8.59, 9.1 General Agreement on Tariffs and Trade (GATT) 1994 …. 6.38, 6.66–6.68, 6.70, 7.1, 7.2, 7.5, 7.9, 7.10, 7.21, 7.34, 7.46, 7.47, 7.58, 7.76, 7.84, 7.107, 8.2, 8.24, 8.26, 8.52, 8.56 art I …. 6.83, 7.27, 7.28 art I(1) …. 7.27 art I(2) …. 7.27 art I(3) …. 7.27 art I(4) …. 7.27 art II …. 7.27 art II:1(b) …. 7.4 art II:2 …. 6.83 art III …. 6.68, 6.73, 6.74, 6.77–6.81, 7.27, 7.30, 8.48 art III(1) …. 7.30 art III(4) …. 7.30 art III:4 …. 6.77 art III:5 …. 6.78 art III:7 …. 6.78 art V …. 7.27, 7.58 art VI …. 7.36–7.40, 7.49, 7.52, 7.58, 7.59 art VI(1) …. 7.35, 7.38 art VI(3) …. 7.48 art VI:3 …. 7.58 art VI:5 …. 7.58

art VII …. 7.59, 106 art VIII …. 7.27 art IX …. 7.27 art XI …. 6.68, 6.73, 6.74, 6.77, 6.78, 6.80, 6.81, 7.27, 7.32, 7.33 art XI(1) …. 7.33 art XI:1 …. 6.77, 6.80 art XIII …. 7.31, 7.32 art XIII(1) …. 7.32 art XIII(5) …. 7.32 art XV …. 7.60 art XVI …. 7.48, 7.50, 7.51 art XVII …. 7.4 art XVIII …. 6.81 art XXIV …. 7.4, 7.27, 8.43, 8.59 art XXVIII …. 7.4 General Agreement on Trade in Services (GATS) …. 6.3, 7.1, 7.4, 7.9, 7.11, 7.62–7.64 art I …. 7.67 art I(1) …. 7.73 art I(2) …. 7.67, 7.71 art I(3)(b) …. 7.66 art I(3)(c) …. 7.66 art II …. 7.65, 7.69 art II(1) …. 7.68 art II(2) …. 7.69

art II(3) …. 7.68, 7.69 art III …. 7.70 art IIIbis …. 7.65 art Vbis …. 7.65 art XIVbis …. 7.65 art XVI …. 7.71–7.73 art XVI(1) …. 7.67 art XVI(2) …. 7.72 art XVII …. 7.74 art XXI …. 7.73 Sch …. 7.73, 7.74 Geneva Convention on the Execution of Foreign Arbitral Awards 1927 …. 9.261 Geneva Convention on the Unification of the Law Relating to Cheques 1931 …. 4.155 Geneva Convention Providing a Uniform Law for Cheques …. 4.9 Geneva Uniform Law for Bills of Exchange and Promissory Notes 1930 (Geneva Convention providing a Uniform Law for Bills of Exchange and Promissory Notes 1930) (Geneva Uniform Law) …. 2.136, 4.9, 4.10, 4.40, 4.41, 4.155 art 1 …. 4.38, 4.161 art 1(1) …. 4.159 art 1(7) …. 4.161 art 2 …. 4.161 art 11 …. 4.163 art 22 …. 4.170

art 75 …. 4.72, 4.177 arts 76–78 …. 4.72 Hague Convention for the Pacific Settlement of International Disputes 1899 …. 9.212, 9.213 Hague Convention for the Pacific Settlement of International Disputes 1907 …. 9.212, 9.213 Hague Convention Respecting the Limitation of Employment of Force for the Recovery of Contract Debts 1907 …. 9.168 Hague Conventions on the Uniform Laws on International Sales 1964 …. 1.6 Hague Conventions relating to a Uniform Law on International Sale of Goods 1964 …. 2.2 Hague Conventions relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods 1964 …. 2.2 Hague Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air 1963 (Hague Protocol 1955) …. 3.10, 3.238–3.241, 3.245, 3.258, 3.259, 3.261, 3.263, 3.264, 3.304, 3.307–3.310, 3.312–3.317, 3.318, 3.321–3.326, 3.329–3.331, 3.333–3.344, 3.346–3.357, 3.362, 3.366–3.383, 3.385–3.389, 3.392 art 1 …. 3.246, 3.247 art 10 …. 3.311, 3.319 Hague Securities Convention …. 10.25 art 1.1(a) …. 10.14, 10.21 art 1.1(c) …. 10.14, 10.15, 10.20 art 1.1(d) …. 10.20 art 1.1(g) …. 10.20 art 2(1) …. 10.17, 10.19

art 4 …. 10.15 art 5(1) …. 10.16 art 5(2) …. 10.16 art 5(3) …. 10.16 art 7 …. 10.17, 10.18 art 7(2) …. 10.17 art 7(4) …. 10.17, 10.18 art 8(1) …. 10.19 ICC Guidelines for International Investment, 2012 …. 6.38 ICC (The International Chamber of Commerce) Rules for Expertise …. 9.222 ICC (The International Chamber of Commerce) Rules for Optional Conciliation …. 9.222, 9.284 ICC (The International Chamber of Commerce) Rules of Conciliation and Arbitration 1998 …. 9.177 art 1 …. 9.221 art 1(2) …. 9.221 art 3 …. 9.243 art 6 …. 9.221 art 11 …. 9.238 art 27 …. 9.221 art 30 …. 9.254 ICC (The International Chamber of Commerce) Uniform Customs and Practice for Documentary Credit (UCP 400) …. 3.69, 4.83, 4.110, 4.129 art 8 …. 4.148

art 16 …. 4.131 art 25(c) …. 3.66 ICC (The International Chamber of Commerce) Uniform Customs and Practice for Documentary Credit (UCP 500) …. 4.82, 4.90, 4.92, 4.94, 4.96, 4.101–4.105, 4.111, 4.117–4.119, 4.131, 4.182 Div A …. 4.81 Div B …. 4.81 Div C …. 4.81 Div D …. 4.81 Div E …. 4.81 Div F …. 4.81 Div G …. 4.81 art 2 …. 4.78, 4.120, 4.121 art 3(a) …. 4.122 art 3(b) …. 4.122 art 8 …. 4.91 art 9 …. 4.8 art 9(a) …. 4.93 art 9(d) …. 4.93 art 13 …. 4.84, 4.133 arts 13–15 …. 4.150 art 13(a) …. 4.84 art 14 …. 4.133 art 14(b) …. 4.130 art 14(f) …. 4.81, 4.113

art 23 …. 3.72, 4.84 art 23(a)(i) …. 4.84 art 24 …. 3.69, 3.72 art 26 …. 3.66 art 27 …. 3.265, 3.268, 3.274, 3.318 art 48 …. 4.95, 4.107 art 48(b) …. 4.107 art 48(c) …. 4.110 art 49 …. 4.107 ICC (The International Chamber of Commerce) Uniform Customs and Practice for Documentary Credits 2007 (UCP 600) …. 3.318, 4.1, 4.4, 4.9, 4.12, 4.79, 4.84, 4.90, 4.93–4.96, 4.101–4.105, 4.111, 4.118, 4.121, 4.182 art 1 …. 4.78, 4.81, 4.82, 4.92, 4.117 art 2 …. 4.78, 4.82 art 3 …. 4.81, 4.92 art 4 …. 4.122 art 7 …. 4.123 art 8 …. 4.123 art 10 …. 4.81 art 13 …. 4.132 art 14 …. 4.126, 4.138 art 14(a) …. 4.134 art 14(b) …. 4.81, 4.138 art 14(d) …. 4.134, 4.138

art 14(e) …. 4.134, 4.138 art 14(f) …. 4.138 art 14(j) …. 4.81, 4.134, 4.138 art 16 …. 4.138, 4.139 art 16(b) …. 4.139 art 16(c)(iii)(a) …. 4.139 art 16(c)(iii)(c) …. 4.139 art 16(d) …. 4.139 art 16(e) …. 4.139 art 16(f) …. 4.139 art 16(g) …. 4.113 art 19 …. 3.72, 4.81 art 20 …. 3.72 art 21 …. 3.72 art 37 …. 4.127 art 38 …. 4.107 art 39 …. 4.107 art 48(a) …. 4.106 ICC (The International Chamber of Commerce) Uniform Rules for Bank-to-Bank Reimbursements 1996 (URR 525) art 2 …. 4.17 ICC (The International Chamber of Commerce) Uniform Rules for Bank-to-Bank Reimbursements under Documentary Credits 2008 (URR 725) …. 4.9 ICC (The International Chamber of Commerce) Uniform Rules for Collections (URC 522) …. 4.9, 4.12, 4.23

Pt B …. 4.26, 4.74, 4.75 art 1 …. 4.77 art 2 …. 4.17, 4.77 art 2(b) …. 4.17 art 2(c) …. 4.17 art 2(d) …. 4.17 art 3 …. 4.77 art 4 …. 4.77 art 5 …. 4.77 art 7(b) …. 4.30 ICC (The International Chamber of Commerce) Uniform Rules for Contract Bonds 1993 …. 4.9 art 2 …. 4.17, 4.183 ICC (The International Chamber of Commerce) Uniform Rules for Contract Guarantees 1978 …. 4.9, 4.183 art 2 …. 4.17 ICC (The International Chamber of Commerce) Uniform Rules for Demand Guarantees 1993 (URDG) …. 4.9, 4.182 art 2 …. 4.183 Institute of Arbitrators and Mediators Australia (IAMA) Rules for the Conduct of Commercial Arbitration …. 9.231 Inter-American Convention on Contracts for the International Carriage of Goods by Road 1989 …. 3.407 Inter-American Convention on International Commercial Arbitration 1975 (The Panama Convention) …. 9.177, 9.217 Inter-American Specialised Conference on Private International Law ….

3.407 International Air Services Transit Agreement 1945 (Transit Agreement) …. 3.9, 3.231, 3.232, 3.234 International Air Transport Agreement 1945 (Transport Agreement) …. 3.9, 3.231, 3.234 art 1, s 1 …. 3.229, 3.232 art 1, s 1, para 3–5 …. 3.233 International Arbitration Rules of the American Arbitration Association …. 9.177 International Bovine Meat Agreement …. 7.3 International Convention concerning the Carriage of Goods by Rail 1893 …. 3.14 International Convention concerning the Carriage of Passengers and Luggage by Rail (CIV) 1985 …. 3.14, 3.406, 3.409–3.411, 3.414, 3.433, 3.437 art 1 …. 3.434, 3.435 art 2 …. 3.434, 3.435 art 3 …. 3.434, 3.435 art 11(1) …. 3.436 arts 17–23 …. 3.438 art 18 …. 3.439 art 19(2) …. 3.439 art 20(4) …. 3.438 art 21 …. 3.438 art 26(1) …. 3.441 art 26(2) …. 3.441

arts 26–33 …. 3.440 art 30 ¶2 …. 3.442 art 30(2) …. 3.442 art 31 …. 3.442 art 32 …. 3.442 art 33 …. 3.434, 3.435 art 34 …. 3.443 art 34(1) …. 3.443 art 34(2) …. 3.443 arts 34–41 …. 3.440 art 35(1) …. 3.444 art 35(2) …. 3.444 art 35(3) …. 3.444 art 36 …. 3.444 art 38 …. 3.446 art 40 …. 3.447 art 41(1) …. 3.448 art 41(2) …. 3.448 art 41(3) …. 3.448 art 41(4) …. 3.448, 3.449 art 42 …. 3.442, 3.449 art 49 …. 3.440 art 51 ¶3 …. 3.443 art 51(3) …. 3.443

art 55(1) …. 3.450 art 55(2) …. 3.450 art 55(3) …. 3.450 art 55(4) …. 3.451 International Convention for the Crossing of Frontiers for Passengers and Baggage Carried by Rail 1952 …. 3.407 International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations 1961 (Rome Convention) …. 7.78, 7.82 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading 1924 (Hague Rules) …. 3.7, 3.17, 3.19, 3.32, 3.42, 3.43, 3.50, 3.56, 3.58, 3.70, 3.78, 3.89, 3.90, 3.91, 3.94, 3.102, 3.134, 3.135, 3.137, 3.148–3.150, 3.163, 3.191, 3.192, 3.193, 3.200, 3.201, 3.206, 3.210, 3.244, 3.319, 3.497, 3.509 art 3(8) …. 3.92, 3.105–3.107 art 4(2) …. 3.111, 3.118 art 4(2)(q) …. 3.109 art 4(5) …. 3.106, 3.126, 3.139 art 6 …. 9.416 art 7 …. 3.480 International Convention on the Harmonization of Frontier Controls of Goods 1982 …. 3.14, 3.407 International Convention to Facilitate the Crossing of Frontiers for Goods Carried by Rail 1952 …. 3.14, 3.407 International Dairy Agreement …. 7.3 International Labour Organization Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy 1977 …. 6.38, 6.84

Investment Protocol to ANZCERTA …. 8.58 London Court of International Arbitration (LCIA) Arbitration Rules 1990 …. 9.177 art 2 …. 9.224 art 5.1 …. 9.238 art 15 …. 9.224 arts 17–29 …. 9.224 art 19 …. 9.248 art 20 …. 9.248 art 24 …. 9.254 art 28.2 …. 9.255 Lugano Convention 1988 …. 9.88, 9.104 Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock (the Luxembourg Protocol) …. 10.4, 10.12 art I(e) …. 10.11 art IX …. 10.11 art XXII …. 10.11 Marrakesh Agreement Establishing the World Trade Organization …. 7.4 Marrakesh Protocol to GATT 1994 …. 7.4 Merger Treaty–Brussels Treaty 1965 …. 8.5, 8.7 Netherlands Arbitration Institute (NAI) Arbitration Rules 1949 art 6 …. 9.225 arts 20–62 …. 9.225 art 21 …. 9.246

art 26 …. 9.248 art 27 …. 9.248 art 29 …. 9.248 art 36 …. 9.254 art 44 …. 9.254 art 56 …. 9.256 North America Free Trade Agreement (NAFTA) 1994 …. 8.43, 8.44, 8.54, 8.59, 9.2, 9.3, 9.196 Ch 4 …. 8.51 Ch 11 …. 8.46, 8.51, 8.53 Ch 14 …. 8.46, 8.51 Ch 19 …. 8.46, 8.51 Ch 20 …. 8.46, 8.51 art 102 …. 8.47 art 301.1 …. 8.48 art 1003.1 …. 8.48 art 1102 …. 8.48 art 1103 …. 8.49 art 1202.1 …. 8.48 art 1306 …. 8.50 art 1411 …. 8.50 art 1703 …. 8.48 art 1903 …. 8.52 art 1904 …. 8.52, 8.53 art 1905 …. 8.53

art 2001 …. 8.45 art 2001.2 …. 8.45 art 2001(4) …. 8.45 art 2002 …. 8.46 OECD Convention Establishing the OECD art 1 …. 6.39 OECD Decision on National Treatment 1991 …. 6.42 OECD Declaration on International Investment and Multinational Enterprises 2000 …. 6.40, 6.41, 6.44, 6.46, 6.47 Part I …. 6.45 Part II …. 6.48 art I …. 6.43 art II …. 6.42, 6.43 art III …. 6.43 art IV …. 6.43 art V …. 6.43 art VI …. 6.43 OECD Declaration on International Investment and Multinational Enterprises 2011 …. 6.38 OECD General Considerations and Practical Approaches concerning Conflicting Requirements Imposed on Multinational Enterprises (Annexure 2 to the OECD Declaration on International Investment and Multinational Enterprises 2000) …. 6.40, 6.46 OECD Guidelines for Multinational Enterprises 2011 …. 6.38, 6.45, 6.48, 6.84 OECD Multilateral Agreement on Investment 1998 (MAI) (Draft) ….

6.5, 6.6, 6.38, 6.49–6.52, 6.70 Paris Convention for the Protection of Industrial Property 1967 …. 7.78 art 8 …. 7.77 Protocol Amending the Agreement on the Establishment of the ASEAN Secretariat 1992 …. 8.40 Protocol and Agreed Minutes on Harmonisation of Quarantine Administrative Procedure …. 8.55 Protocol of Provisional Application of the General Agreement on Tariffs and Trade 1948 …. 7.17 Protocol on Acceleration of Free Trade Goods …. 8.55 Protocol on International Interests in Mobile Equipment on Matters Specific to Agricultural and Construction Machinery (Agricultural Machinery Protocol) …. 10.4 Protocol on International Interests in Mobile Equipment on Matters Specific to Space Assets (Space Assets Protocol) …. 10.4, 10.12 art 1(h) …. 10.12 art I.2(k) …. 10.12 art III …. 10.12 art IV …. 10.12 art XI …. 10.12 art XIII …. 10.12 art XV …. 10.12 art XXXVIII …. 10.12 Protocol on the Authentic Six-Language Text of the Convention on International Civil Aviation (Chicago, 1944) 1998 …. 3.9 Protocol on the Authentic Trilingual Text of the Convention on International Civil Aviation 1968 …. 3.9

Protocol on Trade in Services …. 8.55 Protocol Relating to an Amendment to the Convention on International Civil Aviation 1973 art 50(a) …. 3.9 art 56 …. 3.9 art 83bis …. 3.9 Protocol to Amend the Convention for the Unification of Certain Rules relating to International Carriage by Air as amended by The .372col 1955 (Guatemala City Protocol 1971) …. 3.10, 3.239–3.241, 3.245, 3.263, 3.350–3.357, 3.373–3.381 Protocol to Amend the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface 1978 (Montreal Protocol) …. 5.114, 5.129 art 3 …. 5.127 Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (1968 Protocol) …. 3.7 Protocol to Amend the International Convention for the Unification of Certain Rules Relating to Bills of Lading as Modified by the Amending Protocol of 23rd February 1968 (1979 Protocol or SDR Protocol) …. 3.7, 3.18 Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment 2006 (Cape Town Protocol on Aircraft Protocol) …. 3.12, 10.4, 10.9, 10.11, 10.12 art 1(c) …. 10.10 art IX …. 10.10 art X …. 10.10

art XI …. 10.10 Protocol to the Convention on the Contract for the International Carriage of Goods by Road 1978 …. 3.14, 3.406, 3.452, 3.453, 3.469 Protocol to the Convention on the Contract for the International Carriage of Passengers and Luggage by Road (CVR) …. 3.14 Regulations concerning the International Carriage of Dangerous Goods by Rail (RID) …. 3.406 Rules of the United Nations Commission for International Trade Law (UNCITRAL Rules) …. 8.53 Single European Act 1986 …. 8.5, 8.7 Statute of the International Court of Justice art 38(b) …. 1.10 Stockholm Chamber of Commerce Arbitration Rules (SCC Rules) 2007 art 2 …. 9.226 arts 18–42 …. 9.226 art 21 …. 9.248 art 27 …. 9.248 art 30 …. 9.254 art 44 …. 9.246, 9.255 Treaty establishing European Economic Community 1957 …. 8.8 Treaty establishing the European Atomic Energy Community 1957 …. 8.8 Treaty establishing the European Atomic Energy Community (Consolidated Version 2010) …. 8.8 Treaty Establishing the European Atomic Energy Community (Nonofficial Consolidated Version 1996) …. 8.8

Treaty establishing the European Coal and Steel Community 1951 …. 8.7, 8.8 Treaty Establishing the European Community 1992 (EU Treaty) …. 8.8 Treaty Establishing the European Community (Consolidated Text 2002) …. 8.8 Treaty Establishing the European Community (Consolidated Version 1992) …. 8.8 Treaty Establishing the European Community (Consolidated Version 1997) …. 8.8 Treaty Establishing the European Community (Consolidated Version 2006) …. 8.8 Treaty of Amsterdam 1999 …. 8.7, 8.11 Treaty of Friendship, Commerce and Navigation (FCN Treaty) …. 6.98, 6.99 Treaty of Lisbon 2009 …. 8.7, 8.11, 8.12 Treaty of Nice …. 8.7 Treaty on European Union (Consolidated Version 1997) …. 8.8 Treaty on European Union (Consolidated Version 2002) …. 8.8 Treaty on European Union (Consolidated Version 2006) …. 8.8 Treaty on European Union (Consolidated Version 2008) …. 8.8 Treaty on European Union (Consolidated Version 2010) …. 8.8, 8.15 art 2 …. 8.20 art 3 …. 8.20 art 13 …. 8.9 art 14 …. 8.10 art 15 …. 8.12

art 15(2) …. 8.12 art 15(3) …. 8.12 arts 164–188 …. 8.18 art 170 …. 8.18 arts 188a–188c …. 8.9 art 189 …. 8.11 art 191 …. 8.11 arts 193–198 …. 8.9 art 197 …. 8.11 arts 198a–198c …. 8.9 arts 198d–198e …. 8.9 art 200 …. 8.11 arts 202–210 …. 8.13 art 205 …. 8.14 arts 211–219 …. 8.16 arts 220–245 …. 8.17 art 236 …. 8.19 Treaty on European Union (TEU Treaty or Maastricht Treaty) 1992 …. 8.5, 8.7, 8.8, 8.22 Treaty on Intellectual Property in Respect of Integrated Circuits 1989 (IPIC Treaty) …. 7.78 Treaty on the Functioning of the European Union (Consolidated Version 2008) …. 8.8 Treaty on the Functioning of the European Union (Consolidated Version 2010) …. 8.8 UNCITRAL Arbitration Rules 1976 …. 9.217

art 3 …. 9.245 art 17 …. 9.245 art 18 …. 9.245 art 19 …. 9.245 art 20 …. 9.245 art 21 …. 9.245 art 22 …. 9.245 art 25 …. 9.248 art 27 …. 9.247, 9.248 art 28 …. 9.248 art 30 …. 9.254 art 34 …. 9.254 art 40 …. 9.256 UNCITRAL Arbitration Rules 2013 …. 9.177, 9.219 UNCITRAL Legal Guide on International Countertrade Transactions 1992 …. 6.38 UNCITRAL Legal Guide on International Countertrade Transactions 1993 …. 6.28, 6.54–6.57 UNCITRAL Model Law on Electronic Commerce 1996 …. 1.7 UNCITRAL Model Law on Electronic Signatures 2001 …. 1.7 UNCITRAL Model Law on International Commercial Arbitration 1985 …. 9.1, 9.168, 9.173, 9.176, 9.177, 9.200, 9.218, 9.237, 9.238 Ch IV A …. 9.199 Option I …. 9.202 Option II …. 9.202

art 1(1) …. 1.1 art 1(2) …. 9.199 art 2 A …. 9.199 art 7 …. 9.199, 9.201, 9.202 art 8(1) …. 9.203 art 10 …. 9.205 arts 10–15 …. 9.205 art 11 …. 9.205 art 12 …. 9.205 art 13 …. 9.205 art 16 …. 9.202, 9.206 art 17 …. 9.199 arts 18–32 …. 9.207 art 31 …. 9.208 art 33 …. 9.208 art 34 …. 9.209 art 35 …. 9.211 art 35(2) …. 9.199 art 36 …. 9.211 UNCITRAL Model Law on International Commercial Conciliation 2002 …. 9.177 UNCITRAL Model Law on International Credit Transfers 1992 …. 1.7, 4.9 art 2 …. 4.17 UNCITRAL Model Law on Procurement of Goods, Construction and

Services 1994 …. 1.7 UNCITRAL Model Law on Public Procurement 2011 …. 1.7 UNCITRAL Notes on Organizing Arbitral Proceedings 1996 …. 9.177 UNCTAD/ICC Rules for Multimodal Transport Documents 1992 …. 3.485 UNCTAD Model Clauses on Marine Cargo Insurance …. 5.34 Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) art 2 …. 7.85, 7.86 art 4 …. 7.87, 7.89 art 4(2) …. 7.89 art 4(3) …. 7.89, 7.90 art 4(4) …. 7.89 art 4(7) …. 7.89, 7.90 art 4(8) …. 7.89 art 4(9) …. 7.98 art 4(11) …. 7.89, 7.95 art 5 …. 7.87, 7.90 art 5(3) …. 7.90 art 5(4) …. 7.90 art 5(6) …. 7.90 arts 6–21 …. 7.87 art 6(1) …. 7.93 art 6(2) …. 7.93 art 6(4) …. 7.97

art 7 …. 7.93 art 8(1) …. 7.93 art 8(4) …. 7.92 art 8(6) …. 7.93 art 8(7) …. 7.94 art 8(9) …. 7.94 art 9 …. 7.94 art 10(2) …. 7.95, 7.98 art 10(4) …. 7.95 art 11 …. 7.95 art 12(8) …. 7.95 art 14 …. 7.95 art 15(1) …. 7.96 art 15(2) …. 7.96 art 16 …. 7.97 art 16(1) …. 7.97 art 16(2) …. 7.97, 7.98 art 16(4) …. 7.98 art 17(1) …. 7.92 art 17(2) …. 7.92 art 17(3) …. 7.92 art 17(4) …. 7.98 art 17(5) …. 7.98 art 17(6) …. 7.98

art 17(10) …. 7.98 art 17(14) …. 7.91, 7.99 art 21 …. 7.99 art 21(3) …. 7.12, 7.88, 7.99 art 22 …. 7.88 art 22(6) …. 7.12, 7.88 art 25(2) …. 7.100 Annex 3 …. 7.11, 7.95 Appendix 1 …. 7.11 UNIDROIT Convention on Agency in the International Sale of Goods 1983 …. 1.7 UNIDROIT Convention on Substantive Rules for Intermediated Securities (UNIDROIT Securities Convention or Geneva Securities Convention) Ch II …. 10.22 Ch III …. 10.22 Ch IV …. 10.22 Ch V …. 10.22, 10.23 art 1(a) …. 10.21 art 1(d) …. 10.21 art 1(e) …. 10.21 art 2 …. 10.21 art 7 …. 10.24 art 31.3 …. 10.23 art 31.3(b) …. 10.23

art 31.3(c) …. 10.23 art 33 …. 10.23 art 42 …. 10.21 UNIDROIT Principles 2010 …. 2.1, 2.277–2.279, 2.297 Ch 1 …. 2.281, 2.284 Ch 2 …. 2.284 Ch 3 …. 2.281 art 1.2 …. 2.280 art 1.4 …. 2.280 art 1.5 …. 2.281, 2.283 art 1.7 …. 2.281–2.283 art 1.8 …. 2.282 art 1.9(2) …. 2.282 art 2.1.1 …. 2.284 art 2.1.2 …. 2.284 art 2.1.3 …. 2.284 art 2.1.4 …. 2.284 art 2.1.4(2)(b) …. 2.282 arts 2.1.6–2.1.11 …. 2.284 art 2.1.12 …. 2.285 art 2.1.13 …. 2.286 art 2.1.15 …. 2.282, 2.287 art 2.1.16 …. 2.282, 2.288 art 2.1.18 …. 2.282

art 2.1.19 …. 2.289 art 2.1.20 …. 2.282, 2.289 art 2.1.22 …. 2.290, 2.291 art 2.2.1 …. 2.292 arts 2.2.1–2.2.10 …. 2.292 art 2.2.2 …. 2.292 art 2.2.3 …. 2.292 art 2.2.4 …. 2.292 art 2.2.4(2) …. 2.282 art 2.2.5(2) …. 2.282 art 2.2.7 …. 2.282 art 2.2.10 …. 2.282 art 3.1.1 …. 2.293 arts 3.1.1–3.1.4 …. 2.293 art 3.1.2 …. 2.293 art 3.1.3 …. 2.293 art 3.1.4 …. 2.293 art 3.2.1 …. 2.294 art 3.2.2 …. 2.282 art 3.2.5 …. 2.282, 2.294 art 3.2.6 …. 2.294 art 3.2.7 …. 2.282, 2.294 art 3.2.8(1) …. 2.294 art 3.2.8(2) …. 2.294

art 3.2.9 …. 2.293 art 3.2.10 …. 2.293 art 3.2.13 …. 2.294 art 3.3.1 …. 2.295 art 4.1(2) …. 2.282 art 4.2(2) …. 2.282 art 4.6 …. 2.282 art 4.8 …. 2.282 art 5.1.2 …. 2.282 art 5.1.3 …. 2.282 art 5.2.5 …. 2.282 art 5.3.3 …. 2.282 art 5.3.4 …. 2.282 art 6.1.3 …. 2.282 art 6.1.5 …. 2.282 art 6.1.16(2) …. 2.282 art 6.1.17(1) …. 2.282 art 6.2.3(3)(4) …. 2.282 art 7.1.2 …. 2.282 art 7.1.6 …. 2.282 art 7.1.7 …. 2.282 art 7.2.2(b)(c) …. 2.282 art 7.4.1 …. 2.296 art 7.4.3 …. 2.296

art 7.4.4 …. 2.296 art 7.4.8 …. 2.282, 2.296 art 7.4.10 …. 2.296 art 7.4.13 …. 2.282, 2.296 art 9.1.3 …. 2.282 art 9.1.4 …. 2.282 art 9.1.10(1) …. 2.282 art 10.3(2) …. 2.281 UNIDROIT Principles of International Commercial Contracts 2010 …. 1.7, 1.8 Uniform Law on International Sale of Goods 1964 …. 1.6 Uniform Law on the Formation of Contracts for the International Sale of Goods 1964 …. 1.6 Uniform Rules concerning the Contract for International Carriage of Goods by Rail 1985 (CIM) …. 3.14, 3.406, 3.409–3.411, 3.414, 3.415, 3.425, 3.427, 3.433, 3.460, 3.475 art 1 …. 3.417, 3.418 art 1(5) …. 3.418 art 1(6) …. 3.418 art 3 …. 3.416, 3.418 art 6(1) …. 3.418 art 6(2) …. 3.418 art 6(3) …. 3.419 art 6(4) …. 3.419 art 6(5) …. 3.416 art 6(6) …. 3.419

art 6(9) …. 3.419 art 7(1) …. 3.421 art 7(2) …. 3.421 art 10 …. 3.423 art 12(1) …. 3.420 art 12(2) …. 3.420 art 12(3) …. 3.420 art 12(4) …. 3.420 art 13 …. 3.423 art 17(3) …. 3.424 art 18 …. 3.422 art 18(3) …. 3.424 art 18(4) …. 3.424 art 19 …. 3.422 art 23 …. 3.428, 3.430 art 26 …. 3.416, 3.428 art 27 …. 3.416 art 28 …. 3.431 art 43 …. 3.429 art 48 …. 3.431, 3.483 art 48(2) …. 3.432 art 50 …. 3.428 Uniform Rules concerning the Contracts of Use of Infrastructure in International Rail Traffic (CUI) …. 3.406 Uniform Rules concerning the Contracts of Use of Vehicles in

International Rail Traffic (CUV) …. 3.406 Uniform Rules concerning the Technical Admission of Railway Material used in International Traffic (ATMF) …. 3.406 Uniform Rules concerning the Validation of Technical Standards and the Adoption of Uniform Technical Prescriptions applicable to Railway Material intended to be used in International Traffic (APTU) …. 3.406 United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea 2008 (the Rotterdam Rules) …. 3.7, 3.498, 3.501, 3.504 Ch 4 …. 3.509 Ch 5 …. 3.509 Ch 7 …. 3.510 Ch 8 …. 3.507 Ch 9 …. 3.510 Ch 10 …. 3.511 Ch 11 …. 3.510 Ch 12 …. 3.509 art 1.1 …. 3.497 art 1.5 …. 3.508 art 1.6 …. 3.31, 3.508 art 1.7 …. 3.31, 3.508 art 1.8 …. 3.510 art 1.9 …. 3.510 art 1.10 …. 3.510 art 1.11 …. 3.510

art 1.13 …. 3.510 art 1.14 …. 3.500, 3.503 art 1.15 …. 3.503 art 1.16 …. 3.503 art 1.17 …. 3.503 art 1.18 …. 3.503 art 1.19 …. 3.503 art 1.20 …. 3.503 art 3 …. 3.508 art 4 …. 3.508 art 5 …. 3.499 art 6 …. 3.502 art 6.1 …. 3.500 art 6.2 …. 3.500 art 7 …. 3.502 art 8 …. 3.503, 3.505 art 9 …. 3.505 art 10 …. 3.506 art 12 …. 3.509 art 14 …. 3.509 art 15 …. 3.508 art 16 …. 3.508 art 18 …. 3.508 arts 18–20 …. 3.508

art 29 …. 3.510 art 30 …. 3.510 art 43 …. 3.510 art 51 …. 3.510, 3.511 art 51(1)(a) …. 3.511 art 51(2)(a) …. 3.511 art 51(3) …. 3.511 art 51(4) …. 3.511 art 54 …. 3.511 art 59 …. 3.509 art 60 …. 3.509 art 94 …. 3.496 United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) …. 1.6–1.8, 1.11–1.13, 1.34, 1.37–1.40, 1.44–1.47, 1.61, 1.73–1.75, 1.78, 1.82, 1.90, 1.93, 1.98, 1.100, 1.102, 1.111–1.113, 1.117, 1.130, 1.132, 1.134, 1.136, 2.1–2.3, 2.9–2.11, 2.16, 2.34, 2.53, 2.62, 2.76, 2.145, 2.189, 2.265, 2.272, 2.274, 2.275, 2.277, 2.281, 2.284, 2.285, 5.22, 9.16, 9.280–9.282 Pt II …. 2.24, 2.27, 2.29, 2.31, 2.35, 2.36 Pt III …. 2.27 art 1 …. 2.4–2.6, 2.12–2.14, 2.19, 2.267 art 1(a) …. 2.19 art 1(b) …. 2.19 art 1(1) …. 2.20 art 1(1)(a) …. 2.4, 2.17 art 1(1)(b) …. 2.4, 2.17–2.19, 2.28

art 1(2) …. 2.12 art 1(3) …. 2.12, 2.79 art 2 …. 1.2, 1.14, 2.19, 2.20, 2.276 art 2(a) …. 2.20 art 2(b) …. 2.20 art 2(c) …. 2.20 art 2(d) …. 2.20 art 2(e) …. 2.20 art 2(f) …. 2.20 art 3 …. 2.20, 2.21, 2.22, 2.266 art 3(1) …. 2.20, 2.22 art 4 …. 2.15, 2.37, 2.59, 2.61, 2.110, 2.138, 2.194 art 4(a) …. 2.20 art 4(b) …. 2.20, 2.241 art 5 …. 2.20 art 6 …. 1.40, 2.6, 2.7, 1.19, 2.20, 2.23–2.25, 2.30, 2.110, 2.170, 2.194, 2.229, 2.267 art 7 …. 2.110, 2.177, 2.269, 2.270 art 7(1) …. 2.268, 2.273 art 7(2) …. 2.97, 2.268 art 8 …. 1.18, 2.266, 2.269–2.271 art 9 …. 2.59, 2.266 art 10 …. 2.4, 2.12, 2.79 art 10(a) …. 2.12 art 10(b) …. 2.12

art 11 …. 1.107, 1.108, 2.24, 2.29, 2.31, 2.32, 2.33, 2.37, 2.59 art 12 …. 2.23, 2.24, 2.31 art 13 …. 1.109 art 14 …. 2.39, 2.40 art 14(1) …. 1.110, 2.38 art 14(2) …. 2.40 art 15 …. 2.41–2.43, 2.51, 2.52 art 15(1) …. 2.41 art 15(2) …. 2.41 art 16 …. 2.43 art 16(2) …. 2.43 art 17 …. 2.45, 2.52 art 18 …. 2.46, 2.49, 2.58, 2.60 art 18(1) …. 2.46–2.49 art 18(2) …. 2.47, 2.50, 2.52 art 18(3) …. 1.10, 2.46, 2.48–2.50 art 19 …. 1.18, 2.44, 2.54 art 19(2) …. 2.54, 2.58 art 20 …. 2.52 art 20(1) …. 1.109 art 20(2) …. 2.52 art 21 …. 2.50, 2.58 art 21(1) …. 2.55–2.57 art 21(2) …. 2.56, 2.57

art 22 …. 2.51 art 23 …. 2.58 art 24 …. 2.41, 2.43 art 25 …. 2.64–2.73, 2.75, 2.78, 2.136, 2.160, 2.169, 2.180, 2.207, 2.208, 2.229, 2.232, 2.270 art 28 …. 2.150, 2.153, 2.158, 2.192, 2.194, 2.197, 2.205 art 29 …. 2.24, 2.29, 2.31, 2.49, 2.61, 2.199, 2.266 art 29(2) …. 2.63 art 30 …. 2.77, 2.78 art 31 …. 1.121, 2.79 art 31(b) …. 2.79 art 31(3) …. 2.79 art 32(1) …. 2.83, 2.84 art 32(2) …. 2.85 art 32(3) …. 2.86 art 33 …. 2.81 art 33(b) …. 2.81 art 33(c) …. 2.128 art 33(1) …. 1.121 art 33(2) …. 1.121 art 34 …. 1.121, 2.87, 2.88 art 35 …. 1.118, 2.8, 2.77, 2.78, 2.94–2.97, 2.101, 2.116, 2.192 art 35(1) …. 2.96, 2.101, 2.222, 2.223 art 35(2) …. 2.96, 2.102, 2.109, 2.220 art 35(2)(a) …. 1.118, 1.120, 2.102–2.105

art 35(2)(b) …. 1.119, 2.78, 2.98, 2.99, 2.100, 2.102, 2.105 art 35(2)(c) …. 1.118, 1.120, 2.106, 2.107 art 35(2)(d) …. 1.118, 2.108 art 35(3) …. 2.109–2.111 art 36 …. 2.113, 2.114, 2.121, 2.122 art 36(1) …. 2.112, 2.113 art 36(2) …. 2.114, 2.116 art 37 …. 1.94, 2.25, 2.81, 2.88, 2.126, 2.127, 2.128, 2.193, 2.220, 2.221, 2.232 art 38 …. 1.121, 2.80, 2.110, 2.115–2.119, 2.121, 2.125, 2.144, 2.203, 2.217 art 38(1) …. 2.115, 2.120 art 38(2) …. 2.115, 2.120 art 38(3) …. 2.115, 2.120, 2.124 art 39 …. 2.92, 2.110, 2.116, 2.118, 2.119, 2.121, 2.122, 2.125, 2.197 art 39(1) …. 1.121, 2.121, 2.122 art 39(2) …. 1.121, 2.92, 2.123, 2.124 art 40 …. 2.110, 2.116, 2.117, 2.122, 2.125 art 41 …. 1.114, 2.89, 2.92 art 42 …. 2.90–2.92 art 43 …. 2.92, 2.93 art 43(2) …. 2.92 art 45(2) …. 1.135, 2.193 art 46 …. 2.192, 2.197, 2.202, 2.205, 2.232, 2.252 art 46(1) …. 2.152

art 46(2) …. 2.197 art 46(3) …. 2.197 art 47 …. 1.131, 2.157, 2.192, 2.199–2.202, 2.205, 2.211, 2.212, 2.222, 2.223, 2.232, 2.252 art 47(1) …. 2.201, 2.207–2.210, 2.212 art 47(2) …. 2.200 art 48 …. 2.25, 2.129, 2.130, 2.210, 2.211, 2.213, 2.220–2.223, 2.232 art 48(1) …. 2.194, 2.210, 2.213 art 48(2) …. 2.130, 2.210, 2.213 art 49 …. 1.131, 2.64, 2.118, 2.129, 2.143, 2.157, 2.192, 2.201, 2.207, 2.208, 2.212 art 49(1) …. 2.78, 2.207–2.209 art 49(1)(a) …. 2.201, 2.208, 2.209, 2.222, 2.223 art 49(1)(b) …. 1.131, 2.49, 2.200, 2.201, 2.208, 2.209 art 49(2) …. 2.207, 2.209, 2.210 art 49(2)(b) …. 2.223 art 49(2)(b)(i) …. 2.210, 2.211 art 49(2)(b)(ii) …. 2.211, 2.212 art 49(2)(b)(iii) …. 2.210, 2.211, 2.213 art 50 …. 2.192, 2.219, 2.220, 2.221 art 51 …. 2.130, 2.192, 2.198, 2.201, 2.206, 2.221, 2.258 art 51(2) …. 1.121, 2.206, 2.222, 2.223 art 52 …. 2.147, 2.192, 2.222, 2.224, 2.258 art 52(1) …. 2.222 art 53 …. 1.122, 2.20, 2.35, 2.135, 2.137, 2.144, 2.273

art 54 …. 1.122, 2.136, 2.137 art 55 …. 1.123, 2.39, 2.138, 2.139 art 56 …. 2.140 art 57 …. 1.122, 2.141, 2.142 art 57(1)(a) …. 2.142 art 57(1)(b) …. 2.142, 2.144 art 58 …. 2.143, 2.144 art 58(1) …. 1.122, 2.144 art 59 …. 2.143 art 60 …. 2.146 art 61 …. 2.156, 2.273 art 61(2) …. 1.135 art 62 …. 2.150, 2.152, 2.153, 2.158 art 63 …. 1.131, 2.25, 2.150, 2.154, 2.157, 2.158 art 63(1) …. 2.155, 2.160–2.162, 2.164 art 63(2) …. 2.156 art 64 …. 1.131, 2.64, 2.136, 2.150, 2.157, 2.159, 2.160, 2.169 art 64(1) …. 2.160 art 64(1)(a) …. 2.161 art 64(1)(b) …. 1.131, 2.160, 2.162 art 64(2) …. 2.161 art 64(2)(b) …. 2.161 art 64(2)(b)(ii) …. 2.162 art 65 …. 2.163, 2.164

art 65(1) …. 2.164, 2.165 art 65(2) …. 2.165 art 66 …. 1.116, 2.242, 2.243 art 67 …. 1.115, 2.79, 2.245, 2.251 art 67(1) …. 1.115, 2.244, 2.246, 2.247 art 67(2) …. 1.116, 2.83, 2.84, 2.247 art 68 …. 1.115, 2.248–2.250 art 69 …. 2.246, 2.251 art 69(1) …. 1.115 art 69(2) …. 1.115 art 69(3) …. 1.116 art 70 …. 2.252, 2.253 art 71 …. 2.143, 2.150, 2.166, 2.170, 2.172, 2.173, 2.192, 2.225, 2.227–2.229 art 71(1) …. 2.167 art 71(2) …. 2.168, 2.169 art 71(3) …. 2.167, 2.169, 2.226 art 72 …. 2.143, 2.150, 2.153, 2.169, 2.170, 2.172, 2.192, 2.227–2.229, 2.230, 2.232 art 72(1) …. 2.169 art 72(2) …. 2.169 art 73 …. 1.121, 1.133, 2.173, 2.175, 2.192, 2.232, 2.258 art 73(1) …. 2.171, 2.232 art 73(2) …. 2.172, 2.232 art 73(3) …. 2.174, 2.232

art 74 …. 1.135, 2.71, 2.118, 2.176–2.181, 2.183, 2.185, 2.202, 2.215, 2.216, 2.234, 2.235, 2.237, 2.239 art 75 …. 2.181–2.184, 2.186, 2.187, 2.235–2.238 art 76 …. 2.184–2.187, 2.237, 2.238 art 77 …. 1.137, 2.127, 2.171, 2.182, 2.183, 2.186, 2.187, 2.236, 2.238, 2.253, 2.254, 2.257, 2.263, 2.264, 2.273 art 78 …. 2.188, 2.190, 2.239 art 79 …. 2.133 art 79(1) …. 2.131–2.134, 2.148, 2.149 art 79(2) …. 2.133 art 79(3) …. 2.132, 2.148 art 79(4) …. 2.134, 2.149 art 80 …. 2.151, 2.196 art 81 …. 2.206, 2.214, 2.252, 2.253 art 81(2) …. 2.215 art 82 …. 2.204 art 82(1) …. 2.202, 2.203, 2.216 art 82(2) …. 2.203, 2.204, 2.217, 2.218 art 83 …. 2.202, 2.216 art 84(1) …. 2.240 art 84(2) …. 2.204, 2.218 art 85 …. 2.254, 2.255, 2.256, 2.257, 2.261, 2.263 art 86 …. 2.258, 2.259, 2.261, 2.263 art 86(2) …. 2.260 art 87 …. 2.257, 2.261

art 88 …. 2.257, 2.262–2.264 art 88(1) …. 2.262 art 92 …. 2.23, 2.27 art 93 …. 2.4 art 94 …. 2.26 art 95 …. 2.28 art 96 …. 2.24, 2.29 art 99 …. 2.2 art 100 …. 2.4, 2.5 arts 1–6 …. 2.4 arts 3–5 …. 2.4 arts 14–24 …. 2.31, 2.35 arts 30–34 …. 2.77 arts 35–44 …. 2.77 arts 46–48 …. 2.193 arts 46–50 …. 2.200 arts 66–70 …. 1.115 arts 67–69 …. 2.112 arts 74–77 …. 1.96, 2.252 arts 74–78 …. 2.150, 2.156, 2.171, 2.176, 2.192, 2.193, 2.222, 2.223, 2.233, 2.252 arts 75–77 …. 2.186 arts 85–88 …. 2.254 arts 94–96 …. 2.23 United Nations Convention on Independent Guarantees and Stand-By

Letters of Credit 1995 …. 1.7, 4.9 United Nations Convention on Independent Guarantees and Stand-by Letters of Credit 2001 …. 4.11, 4.178, 4.180, 4.182, 4.183 Ch I …. 4.181 Ch II …. 4.181 Ch III …. 4.181 Ch IV …. 4.181 Ch V …. 4.181 Ch VI …. 4.181 Ch VII …. 4.181 art 2 …. 4.179 art 6 …. 4.17 United Nations Convention on International Bills of Exchange and International Promissory Notes 1988 …. 1.7, 2.136, 4.9, 4.11, 4.155, 4.156, 4.169 Ch I …. 4.157 Ch II …. 4.157 Ch III …. 4.157 Ch IV …. 4.157 Ch V …. 4.157 Ch VI …. 4.157 Ch VII …. 4.157 Ch VIII …. 4.157 Ch IX …. 4.157 art 1 …. 4.158

art 2 …. 4.158 art 2(1) …. 4.160 art 2(2) …. 4.176 art 3(1) …. 4.160 art 3(1)(c) …. 4.161 art 3(2) …. 4.176 art 4(b) …. 4.17 art 4(c) …. 4.17 art 5 …. 4.17, 4.167 art 8(4) …. 4.162 art 8(5) …. 4.162 art 11 …. 4.43 art 12(1) …. 4.168 art 13 …. 4.165 art 14 …. 4.166 art 15 …. 4.167 art 16 …. 4.165 art 17(1) …. 4.163, 4.164 art 17(2) …. 4.164 arts 27–32 …. 4.168 art 28 …. 4.168 art 29 …. 4.168 art 40 …. 4.170 art 40(1) …. 4.170

art 40(2) …. 4.171 art 41 …. 4.171 art 43 …. 4.171 art 46 …. 4.17, 4.173 art 47 …. 4.17 art 49 …. 4.170 art 49(2)(a) …. 4.170 art 49(2)(b) …. 4.170 art 49(2)(c) …. 4.170 art 51(d) …. 4.162 art 54(1)(a) …. 4.172 art 54(2) …. 4.172 art 55 …. 4.168 art 58(2) …. 4.175 art 58(3) …. 4.175 art 59 …. 4.172, 4.175 arts 60–62 …. 4.175 art 72(1) …. 4.174 United Nations Convention on International Multimodal Transport of Goods 1980 …. 3.1, 3.7, 3.15, 3.485–3.487, 3.492, 3.494 art 9 …. 3.489 arts 18–20 …. 3.491 art 24 …. 3.492 art 27(5) …. 3.495 art 36 …. 3.7

United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) 1958 …. 9.157, 9.170, 9.176–9.178, 9.195, 9.214, 9.217, 9.254, 9.257, 9.260–9.262, 9.272, 9.279, 9.280, 9.281 art I …. 9.258, 9.259 art I(2) …. 9.253, 9.259 art I(3) …. 9.180 art II …. 9.181, 9.263, 9.264, 9.269 art II(2) …. 9.179, 9.181, 9.183 art II(3) …. 9.265 art III …. 9.181, 9.264, 9.267–9.269 art IV …. 9.182, 9.269 art V …. 9.182, 9.211, 9.269 art V(1)(a) …. 9.270 art V(1)(b) …. 9.271 art V(1)(c) …. 9.273, 9.274 art V(1)(d) …. 9.275 art V(1)(e) …. 9.276 art V(2)(a) …. 9.277 art V(2)(b) …. 9.278 art VII …. 9.182, 9.183 art VII(1) …. 9.179, 9.181, 9.183 art 36 …. 9.211 United Nations Convention on the Liability of Operators of Transport Terminals in International Trade 1991 …. 3.7 United Nations Convention on the Liability of Operators of Transport

Terminals in International Trade 2008 (OTT Convention) …. 3.16, 3.146 United Nations Convention on the Limitation Period in the International Sale of Goods 1974 …. 1.7 United Nations Convention on the Use of Electronic Communications in International Contracts 2005 …. 1.7 United Nations Transnational Corporations Code of Conduct 1979 …. 6.84 Vienna Sales Convention …. 9.69 Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1965 …. 6.1, 6.33, 6.91, 9.5, 9.168, 9.177, 9.184, 9.196, 9.200, 9.237 arts 1–24 …. 9.186 art 6 …. 9.187 art 13 …. 9.189 art 18 …. 9.190 art 25 …. 9.191, 9.218 arts 28–55 …. 9.185 art 31 …. 9.189 arts 36–54 …. 9.192 arts 37–40 …. 9.193 art 38 …. 6.90 art 40 …. 9.189 arts 41–47 …. 9.194 art 42 …. 9.194 art 52(3) …. 9.198

art 53 …. 9.195 art 64 …. 9.191 World Bank Guidelines on the Treatment of Foreign Direct Investment 1992 …. 6.38 World Bank’s International Centre for Settlement of Investment Disputes (ICSID Convention) …. 8.53, 9.168, 9.184, 9.189, 9.196 Additional Facility Rules …. 8.53 Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings (ICSID Rules) …. 9.237 art 34 …. 9.248 art 35 …. 9.248 World Trade Organization Agreement 1995 (WTO Agreement) …. 6.66, 6.70, 6.74, 6.82, 7.1, 7.2, 7.6, 7.21, 7.37, 7.49, 7.58, 7.78, 7.82, 7.84–7.86, 7.89, 7.92, 7.93, 7.95, 7.104, 8.55, 8.61, 9.1 art 3 …. 7.3 art 4 …. 7.5 art IV …. 7.11, 7.14 art IV(5) …. 7.8 art IV(6) …. 7.8 art IV(7) …. 7.7, 7.15 art VI …. 7.13 art VIII …. 7.5 art XI …. 7.16, 8.24 art XII …. 7.16 art XIII …. 7.105, 8.1 art XIV …. 7.16

Annex 1A …. 7.4, 7.8, 7.39, 7.59 Annex 1B …. 7.4, 7.65, 8.24 Annex 1C …. 7.4 Annex 2 …. 7.4 Annex 3 …. 7.4 Annex 4 …. 7.4 Annex 4(a) …. 7.4 Annex 4(b) …. 7.4 World Trade Organization Doha Development Agenda …. 8.29

Contents PREFACE TABLE OF CASES TABLE OF STATUTES 1

INTERNATIONAL COMMERCIAL CONTRACTS UNDER DOMESTIC LAW

Introduction Conventions relevant to international sale of goods Effect of customs Relevance of domestic law Defining International sale of goods Application of Incoterms® 2010 in international sales Legal framework for international sale of goods in Australia International sale of goods and general contract law International sale of goods and the Australian sale of goods legislation International sale of goods and the Chinese Code of Contract Law

2

INTERNATIONAL COMMERCIAL CONTRACTS UNDER MAJOR INTERNATIONAL REGIMES: UNDER THE CISG AND THE UNIDROIT PRINCIPLES

Introduction

Sale of goods under the CISG Excluding or varying the effect of the provisions of the Convention Formation of a contract Fundamental breach under the Convention Performance of contract Remedies The passing of risk under the Convention Preservation of goods under the Convention Conclusion: potential use of the Convention through modification and interpretation Incorporation of the Convention into Australian law Constitutional implications of the CISG International commercial contracts under the UNIDROIT Principles

3

CONTRACTS FOR CARRIAGE BY SEA, AIR AND LAND

Introduction to the Law of Carriage Carriage of goods by sea Australian Carriage of Goods by Sea Act 1991 (CTH) Contracts for the carriage of goods by air Contracts for carriage by land Carriage of goods by multimodal transport Major principles of the Rotterdam Rules

4 Overview

MEANS OF PAYMENT IN INTERNATIONAL TRADE

The major concerns in effecting payment in international trade The basic methods of payment in international trade International legal framework for payment in international transactions Means of payment under domestic law Defining terms in effecting payment Payment by cash in advance Payment by open account Payment by collection Payment by way of documentary credit Means of payment under the UN Conventions

5

MARINE INSURANCE, AVIATION INSURANCE AND INTERNATIONAL TRADE

Introduction Explaining marine insurance General principles for the making of a marine insurance contract Making of a cargo insurance contract Making of a hull insurance contract Legal framework for international marine insurance Explaining an insurable interest Explaining ‘marine risks’ Categories of marine insurance contracts Forms of marine insurance documents Assured’s duty to disclose the relevant information Insurer’s duties and inherent vice

Broker’s duties to assured and insurer Reinsurance and insurer’s liability Burden of proof as to the cause of the loss Included and excluded losses Categories of losses Determination of indemnity Assignment of policy Insurer’s right of subrogation Aviation insurance

6

FOREIGN INVESTMENT LAW

Introduction Explaining foreign investment Relationships between foreign investment and host country Forms of foreign investment International legal framework for foreign investment UNCTAD Investment Policy Framework For Sustainable Development Core principles for investment policymaking The WTO and foreign investment Selected issues for the regulation of foreign investment Means for protection of foreign investment ISDS clause and related issues International Court of Justice and foreign investment

7

THE WORLD TRADE ORGANIZATION

Introduction A brief history of the WTO Major functions of the WTO The WTO Agreement and its annexes Structure of the WTO General Agreement on Tariffs and Trade (GATT) GATT Agreement General Agreement on Trade in Services (GATS) TRIPs Agreement Dispute settlement within the WTO The WTO and competition law The WTO and other international trade organisations Doha Round of negotiations and WTO development

8

REGIONAL TRADE AGREEMENTS AND FREE TRADE AGREEMENTS

Introduction The European Union Asia–Pacific Economic Cooperation (APEC) Association of South-East Asian Nations (ASEAN) North America Free Trade Agreement (NAFTA) Australia–New Zealand Closer Economic Relations China–Australia Free Trade Agreement Future of the ChAFTA

9

SETTLEMENT OF INTERNATIONAL COMMERCIAL DISPUTES

International commercial litigation and conflict of laws Resolving disputes between governments Resolving disputes involving private parties Defining the means of dispute settlement Defining international commercial litigation Domestic courts and international commercial litigation Functions of the courts in international commercial litigation Importance of conflicting rules in international commerce Meaning of ‘conflict of laws’ Three operating areas of conflicts rules Major theories of conflicts rules True conflict and false conflict Characterisation and conflicts rules Selected rules and tests of conflict of laws Conflict of laws in Australia Contract disputes and conflict of laws Tortious disputes and conflict of laws Certain exceptions Disputes relating to real estate and conflict of laws Disputes relating to chattels personal and conflict of laws Enforcement of foreign judgments Enforcement of foreign judgments in Australia Alternative means of settling international commercial disputes

Legal framework for international commercial arbitration Major international arbitral institutions and their functions Major procedural issues in international commercial arbitration The New York Convention and international commercial arbitration

10 NEW DEVELOPMENTS IN INTERNATIONAL COMMERCIAL LAW An overview Regulation of international mobile equipment Regulation of intermediate securities

INDEX

[page 1]

CHAPTER 1 International Commercial Contracts under Domestic Law INTRODUCTION The term ‘commercial contract’ is broader in meaning than the term ‘sale of goods contract’. To ensure that the concept of ‘commercial contract’ is properly understood, two basic points must be clarified. First, the term is used in a broad and non-technical manner in the sense that the technical differences between ‘civil’ and ‘commercial’ activities/transactions which are often emphasised in legal systems that follow the continental law tradition are ignored. Second, the term is used in a broad way in the sense that all types of commercial activities/transactions fall within the scope of ‘commercial contract’. One example of this is the use of the term ‘commercial’ in the UNCITRAL Model Law on International Commercial Arbitration, where this term refers non-exhaustively to the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or road.1 It is therefore emphasised that in this book the term ‘commercial contract’ is used in the broad sense unless a particular type of commercial activity/transaction is identified. Although we cannot list or exhaust all specific forms of commercial 1.1

activity/transaction, there are two basic forms — that is, sale of goods and supply of services — in all commercial activities/transactions. The basic forms do not deny the existence of special types of international commercial activities, such as independent intellectual property (IP) transactions or transactions of mixed nature (for example, a construction project may involve construction and consultation services, sale of goods and equipment, transfer of IP, management and leasing arrangements, etc.) Given the fact that the international sale of goods contract has been one of the major concerns of international commercial law, this chapter mainly deals with the sale of goods contract unless specified otherwise. [page 2] An international sale of goods may be subject to domestic law for at least two reasons. First, the domestic law is supplementary to the relevant international convention or international commercial custom when each covers a different area of the international sale. For example, a contract for the sale of an aircraft is not governed by the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG);2 thus, in a situation similar to Boronia Park Properties Pty Ltd v Arramunda Airway Pty Ltd [1995] NTSC 16,3 the relevant domestic law — for example, Australian law — should apply, even if the buyer or seller is a foreign party. Second, the domestic law governs an international sale in the absence of any international convention or international commercial custom. A convention only operates between its members. It is not unusual for an international sale to take place between people from two or more countries (or customs territories)4 that are not parties to the same convention. Nor is it uncommon for a court to find that a particular piece of domestic law is applicable in an international sale under the rules of conflict of laws adopted by the court. Thus, it can be argued that domestic law is one of the sources of international commercial law. This is why domestic law is relevant to our studies. 1.2

As we have seen, the substance of international commercial law is not fixed. Nor is the body of laws governing contracts for the international sale of goods. This is because international conventions operate only between countries (or customs territories, if applicable) that are parties to those conventions. However, trade and commerce regularly take place between countries that are not parties to the same conventions. Contracting parties to a sales contract are entitled to exclude the application of a convention in most cases. In addition, customs vary in different regions and trades. It is naive to assume that the parties to a contract of international sale must have adopted the same system of law and trade customs. 1.3

The law that may affect a contract for the international sale of goods comes from three sources: international conventions; customs that have received universal recognition, such as International Chamber of Commerce (ICC) rules; and domestic laws applicable to international transactions. 1.4

This chapter deals with the legal issues arising from international sales of goods in a domestic context. We will first broadly review the international conventions that may affect the international sale of goods. Second, we will examine the meaning of ‘international sale of goods’. Third, we will investigate the relevant issues in the context of Australian domestic law and Chinese domestic law. These two countries are chosen for 1.5

[page 3] their representation of two different legal traditions, with Australian law following the common law tradition, and Chinese law representing, to some extent, the continental law tradition. ‘Incoterms’ are international commercial customs, and need to be discussed in the context of a domestic law (in this chapter, Australian law and Chinese law), because their legal effect as binding contractual terms is only derived from an

applicable law — either an international convention or a domestic law, as the case may be.

CONVENTIONS RELEVANT TO INTERNATIONAL SALE OF GOODS The main convention for the international sale of goods is the United Nations Convention on Contracts for the International Sale of Goods (CISG). As of March 2015, the CISG had 83 member countries.5 The CISG was intended to replace the 1964 Uniform Law on International Sale of Goods and the 1964 Uniform Law on the Formation of Contracts for the International Sale of Goods, which are referred to collectively as the Hague Conventions on the Uniform Laws on International Sales of 1964.6 The Hague Conventions on the Uniform Laws on International Sales of 1964 were signed by 12 countries, but ratified by only nine countries: the United Kingdom, San Marino, Belgium, Gambia, Germany, Italy, Israel, Luxembourg and the Netherlands. The Conventions required a minimum of five member countries for them to be operative and came into operation in 1972. Now Belgium, Italy, Germany, Luxembourg, San Marino and the Netherlands have ratified the CISG, and Israel has denounced them.7 This means that only the United Kingdom and Gambia remain as members of the Conventions, which are most likely inoperative or in fact meaningless owing to insufficient members.8 Although neither of the two Conventions contains a special provision dealing with a situation where the minimum membership requirement cannot be satisfied due to withdrawal by former members, it is reasonable to apply the requirement for a minimum of five members to all situations to ensure the practical significance of the Conventions. It is clear that conventions with two members are no more than two bilateral treaties no matter what their names are. 1.6

There are also other international conventions or model laws that are relevant to the international sales of goods. These include: 1.7

the United Nations Convention on the Limitation Period in the International Sale of Goods 1974;9 [page 4] the International Institute for the Unification of Private Law (UNIDROIT) Convention on Agency in the International Sale of Goods 1983;10 the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Procurement of Goods, Construction and Services 1994, which has been adopted by 30 countries, whose laws are either based on or largely inspired by the Model Law;11 the UNCITRAL Model Law on Public Procurement 2011, which had been adopted by 14 countries as at July 2015;12 the UNCITRAL Model Law on International Credit Transfers 1992, which is also meant to be a model for domestic law-making, and which has been largely adopted by the European Union;13 the United Nations Convention on International Bills of Exchange and International Promissory Notes 1988;14 the United Nations Convention on Independent Guarantees and Stand-By Letters of Credit 1995;15 the UNCITRAL Model Law on Electronic Commerce 1996, which has been followed or adopted by more than 64 countries in the world;16 the UNCITRAL Model Law on Electronic Signatures 2001, which has been adopted by 31 countries;17 the United Nations Convention on the Use of Electronic Communications in International Contracts 2005, which became effective in 2013 with seven members;18 and the UNIDROIT Principles of International Commercial Contracts

2010,19 which are prepared by the UNIDROIT, represent a body of customary laws that are often chosen by private parties as the governing law in their commercial transactions. [page 5] These conventions or model laws cover a wide range of issues relating to international sales. Although some of them have received wide acceptance (for example, the CISG), some have little practical significance because very few countries have ratified or adopted them. It is necessary to emphasise that conventions and model laws have different legal status. A convention is binding upon its members by its own force, but a model law is only a model for domestic law-making and cannot be enforced on its own. In addition, a convention is a form of international law, but a model law is not and can only be enforced as a domestic law in the country adopting it. However, the UNIDROIT Principles of International Commercial Contracts 2010 are an international instrument in their own class, which are promoted by the UNIDROIT, an intergovernmental organisation, as a set of recommended legal principles for private parties to adopt in their transactions. International sales can be complicated because various legal issues can be involved and they may be subject to different laws, such as international or domestic law. In addition, a convention is binding upon a country only after the country has ratified it. This means that whether a valid convention applies to a particular transaction or not depends on whether the countries involved are members to the convention; or, alternatively, whether the convention becomes applicable under the relevant conflicts rules. Otherwise, customs or other relevant laws apply. Furthermore, several conventions — or both conventions and domestic laws — may apply concurrently to the same transaction because the transaction involves a number of legal issues of a different nature, such as sales, insurance, transportation and customs control, etc. 1.8

EFFECT OF CUSTOMS Customs can be regarded as the original source of international commercial law. This is because the original international commercial law was based on customs — that is, lex mercatoria — and also because international conventions are largely codifications of customs that have been commonly accepted by most countries in the world. Given the diversity of the world’s legal systems, customs and their derivative rules are most likely to receive universal recognition for their commercial acceptability. Therefore, where there is no convention governing a particular transaction, customs and commercial practices should apply. The most popular commercial customs so far are the rules codified by the ICC. International commercial terms, or ‘Incoterms’, are the most popular ‘rules’ governing sale contracts involving the transport of goods; Incoterms® 2010 is the most recent version. The ICC has also published a number of other ‘rules’ dealing with international trade and commerce, such as the Uniform Customs and Practice for Documentary Credits (UCP 600) and the ICC Uniform Rules for Demand Guarantees (URDG). 1.9

There is a need to differentiate between customs in the context of public international law and in the context of international commercial law. In the context of public international law, custom is one of the recognised sources of law, binding upon countries of the world.20 In comparison, a custom in the context of international commercial law may or may not have the same binding force as the custom in public 1.10

[page 6] international law. In the area of international commercial law that overlaps with public international law, the custom can be binding as a source of public international law. However, in the area of international commercial law that is considered to be of private law nature, the custom

is not binding upon parties by its own force. This is because commercial customs can only be binding by agreement of the parties or sometimes by the direct or indirect authorisation of an international convention or domestic law. For example, the CISG art 18(3) permits an offer to be accepted in a way deemed appropriated under a usage (custom); under the Sale of Goods Act 1923 (NSW) art 33(4) the rules concerning delivery of wrong quantity or mixed goods are subject to any usage (custom) of trade; and the Chinese Contract Law Code art 22 permits an acceptance to be effected by conduct in pursuance of trade usage or custom. In the view of the author, the essential reason why different outcomes result from the application of public international law customs and international commercial law customs of private law nature is because of the ways in which these customs have been developed or created. Public international law customs have been developed by sovereign states in their practices;21 however, international commercial customs of private law nature have been formed by private traders who do not possess any real law-making power except for the autonomy to reach an agreement and reap the mutual benefits arising from adherence to such an agreement. Such customs can bind the private parties only if they are willing to be bound by them; and only after being indorsed by a convention or domestic law, can the customs then have universal binding force as a form of law. This is the nature of international commercial law customs of private law nature.

RELEVANCE OF DOMESTIC LAW Domestic law also affects contracts for the international sale of goods. For example, the CISG operates in each Australian state and territory as the law of the relevant state or territory. However, the sale of goods legislation in each state and territory may apply to a contract for international sale as far as its application does not lead to inconsistencies with the Convention. Indeed, certain aspects of sale that are not covered by the Convention, such as passing of property,22 the validity of contract 1.11

and the validity of a contractual clause, are governed by the relevant sale of goods legislation.23 [page 7] By the same token, in Australia the Corporations Law in each state, the Bills of Exchange Act 1909 (Cth), the Marine Insurance Act 1909 (Cth), the Foreign Acquisitions and Takeovers Act 1975 (Cth), the Securities Industry Act 1980 (Cth), the Carriage of Goods by Sea Act 1991 (Cth), the Banking Act 1959 (Cth), the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), the Competition and Consumer Act 2010 (Cth) Pt X (International Liner Cargo Shipping), local procedural law,24 and other provisions of the domestic law, are applicable to contracts for international sales, provided that no inconsistency arises between the application of these domestic laws and the performance of Australia’s obligations under any international conventions.25 For example, in Hi-Fert Pty Ltd v United Shipping Adriatic Inc [1998] FCA 1622, the plaintiff cargo-owner sued the vessel owner, the charterer and the inspection agent for its loss arising from the decision of the Australian Quarantine Inspection Service to prohibit the cargo of urea from entering into Australia, on the grounds that the cargo might have been contaminated by a quarantinable disease known as ‘karnal bunt’. The plaintiff sued the defendants on various grounds, including a charge against the charterer for misleading or deceptive conduct under the Trade Practices Act 1974 (Cth). Similarly, in Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc [1998] FCA 1485, a dispute arose from the carriage of a cargo of fertiliser from the United States to Australia. The International Arbitration Act 1991 (Cth) and the Trade Practices Act 1974 (Cth) were applied to determine the rights and obligations of the parties concerned.26 The relationship between domestic laws affecting international sales and the relevant international conventions or customs are largely 1.12

similar in other jurisdictions — in particular, common law jurisdictions, such as the United Kingdom, Hong Kong, New Zealand, Canada and the United States. The basic principle is always that the relevant international convention takes priority if the relevant country has ratified and incorporated the convention into the domestic law. Even in countries largely based on a civil law tradition, such as Japan, France and China, the principle is the same.27 For example, China is a member of the CISG. It promulgated a Code of Contract of Law in March 1999, which came into operation on 1 October 1999. The Code applies to all types of contract, including sales contracts in China. [page 8] It is supplementary to the CISG in international sales, providing rules for matters not covered by the CISG.28 1.13

Kay Minge v J W Oak Furniture Imports Ltd and William Heinhuis 26 February 1998, Supreme Court of British Columbia (Available at .)

An international sale of a car can be subject to domestic law Facts: The plaintiff was an antique collector in Norway. The defendants were from Canada. The parties agreed that in 1996 they entered into a contract for the sale of a 1932 Chrysler Imperial Le Baron Roadster by the defendants to the plaintiff for a price of US$124,800. But the defendants argued that the contract of sale also included the sale of a 1976 John Deere Crawler Loader Tractor Model 450 for a price of US$50,000. The plaintiff, who had paid US$124,800 to the defendants, denied the purchase of the tractor. The plaintiff asked the court to order the defendants to deliver up the car to him pending the trial in pursuance of rule 46 of the court. The defendants contended that such an order would deprive them of their right under the Sale of Goods Act (Canada). Whether the court should enforce rule 46 in the present case was the issue to be determined by the court. Decision: The court examined the issue and balanced the interests of the parties solely in the

context of Canadian law. The court decided that the plaintiff would be entitled to receive the car pending the trial only if he deposited US$37,400 into the court as security, a sum equivalent to about half of the defendants’ counter-claim. In this case, neither Norwegian law, the CISG, nor any other international convention was referred to, even though the dispute obviously involved an international sale. This is not unusual in an international sale for a number of reasons. For example, the sale may be regarded as a consumer sale and thus excluded from the CISG. The parties may prefer to use Canadian law, instead of Norwegian. The court may find Canadian law appropriate to apply. The question before the court may be procedural only, as it was in the present case, and should thus be governed by the local (domestic) law only. In the present case, both Canada and Norway are members of the CISG. If none of the countries are a member of the CISG, the Convention may also be excluded unless it is regarded as being applicable under the relevant conflict of laws rules. Thus, an international sale may be subject to the domestic law of the country where the transaction takes place for several reasons.

DEFINING INTERNATIONAL SALE OF GOODS An international sale of goods is a sale involving parties from different countries. A contract dealing with such a sale or transaction is a contract for the international sale of goods. There are three essential elements in an international sale of goods: 1. There is a sale, which is different from an exchange of goods, countertrade or barter as a means of international commerce.29 However, in practice, a transaction based on the mode of countertrade or barter trade may be subject to the same rules as sale of goods by analogy.30 1.14

[page 9] 2.

The subject matter of the sale is ‘goods’, which has a different meaning under different laws. For example, ‘goods’ under the Australian sale of goods legislation (see, for instance, the Sale of Goods Act 1923 (NSW)) s 5 refers to all chattels personal other than things in action and money. ‘Goods’ under the Competition and Consumer Act 2010 (Cth) includes gas and electricity (s 95A),

which certainly do not fall under the concept of ‘chattels personal’. ‘Sale of goods’ under the CISG does not include the sale of ships, vessels, aircraft (which are, however, covered under the Competition and Consumer Act 2010 (s 95A) and the sale of goods legislation) and electricity: CISG art 2. If a sale of ‘goods’ (or anything which is the subject of a sales contract) is not governed by any specific domestic law or convention, the transaction will be subject to the general principles of contract law, unless the transaction is prohibited under the relevant law. 3. The sale is effected at an international level, involving various international elements, such as a foreign buyer or seller, foreign origin or destination of the goods, foreign banks or financial institutions, or the application of foreign law and jurisdiction, among others. The three essential elements remain the same in any jurisdiction or legal tradition. The meaning of ‘goods’ varies from one jurisdiction to another, because a particular law may have restrictions on what can be sold as goods in a commercial transaction, or on what can be subject to a contract of sale. For example, national restrictions on the export of certain types of high technology to certain countries may make a contract unenforceable or void ab initio. On the other hand, refusal to enforce a commercial contract against a government authority may also make the contract concerned unenforceable, depending on the relevant domestic law. This is why the CISG does not cover the validity of a contract or a contractual term.

®

APPLICATION OF INCOTERMS 2010 IN INTERNATIONAL SALES Explaining Incoterms® 2010 1.15

‘Incoterms’ refers to a collection, or a uniform interpretation, of a

number of essential trade terms concerning the carriage or delivery of goods. They are compiled by the ICC for the purpose of providing uniform interpretations of the terms and reducing or avoiding potential disputes in their use. The first set of Incoterms was published in 1936. Amendments were made in 1953, 1967, 1976, 1980, 1990, 1999 and 2010. ‘Incoterms® 2010’ refers to the current version of the Incoterms, published by the ICC in 2010. The terms are not binding on any parties before they are incorporated into a contract of sale. However, they represent the most common commercial practices, usage or customs, which can be voluntarily accepted by the contracting parties. The existence of the ICC’s Incoterms means that the ‘uncertainties of different interpretations of such terms in different countries can be avoided or at least reduced to a considerable degree’.31 Indeed, the evolution of the Incoterms themselves proves the truth of this proposition. [page 10] For example, in 1955, the Free Alongside Ship (FAS) term did not specify who was responsible for obtaining an export licence. This omission led to the dispute in MW Hardy & Co Inc v AV Pound & Co Ltd [1955] 1 Lloyd’s Rep 155 (CA). In that case, the parties concluded an FAS contract for the sale of 300 t of Portuguese turpentine from Lisbon to East Germany. The contract could not be performed because of the Portuguese restriction on exports to East Germany. The contract did not stipulate who was liable for obtaining the export licence. The United Kingdom Court of Appeal held that, in the circumstances concerned, the seller was expected to obtain an export licence. If this dispute had taken place today, headings A2 and B2 of the FAS term would provide a clear answer. Under the FAS term, where applicable,32 the seller and buyer are responsible respectively for obtaining the export or import licence. 1.16

Incoterms® 2010 contains 11 terms, which may apply to various

modes of transport. The rights and liabilities of the seller and buyer are defined in each term. When a term is incorporated into a contract of sale, the definition of the term — the rights and obligations of the parties — also becomes part of the contract. Wherever a term is accepted in a contract of sale, the parties also undertake a liability to perform the duties specified in the term. This is how the Incoterms operate. Unlike the Incoterms 2000, where the 13 Incoterms are divided into four groups, largely according to the extent of the seller’s responsibilities,33 the Incoterms® 2010 divides the terms into two groups: ‘rules for any mode or modes of transport’ and ‘rules for sea and inland waterway transport’. Seven terms, including Ex Works (EXW), Free Carrier (FCA), Carriage Paid To (CPT), Carriage and Insurance Paid To (CIP), Delivered at Terminal (DAT), Delivered at Place (DAP) and Delivered Duty Paid (DDP) are in the first category, which contains the rules suitable for any mode or modes of transport;34 and four other terms, including Free Alongside Ship (FAS), Free on Board (FOB), Cost and Freight (CFR) and Cost Insurance and Freight (CIF) are in the second category, which covers sea and inland waterway transport. The new division adopted in the Incoterms® 2010 is more practical in the sense that the majority of those traders who do not have any comprehensive training in law or a detailed knowledge of the Incoterms are able to choose a term most or relatively suitable for the mode of transport to be employed in the specific transaction contemplated by them. [page 11]

Main features of Incoterms® 2010 There are a number of significant changes in the Incoterms® 2010. A detailed comparison between the Incoterms 2000 and Incoterms® 2010 will not be undertaken in this book. In the author’s view, such a technical comparison is not the most effective way to understand the Incoterms® 1.17

2010, which will apply independently in their own right. However, it is possible that both the Incoterms 2000 and the Incoterms® 2010 may operate concurrently for a few years after 2011 until, in the natural course of events, the Incoterms 2000 cease to be relevant. In brief, the main features of the Incoterms® 2010 can be summarised as follows: In order to differentiate the use of Incoterms® 2010 from the use of Incoterms 2000, it is recommended that the expression ‘Incoterms® 2010’ is used as a postfix when any of the 11 terms is incorporated into a sales contract.35 Special attention should also be given to the use of ‘®’ and ‘2010’, which are intended to be part of the new Incoterms.36 The Incoterms® 2010 are suitable for both international and domestic transactions.37 This represents a fundamental change from the Incoterms 2000. Therefore, the obligation to obtain an export, import or transit permit (or similar obligation) may vary depending on whether an international transaction is involved. In order to avoid misunderstanding, the parties are advised to specify the point of delivery within the named place of delivery in as detailed a manner as possible by way of agreement. In order to avoid confusion concerning which party shall pay for the terminal handling charges under CPT, CIP, CFR, CIF, DAT, DAP and DDP, A6/B6 of these terms clearly states the obligations of the seller and buyer to pay at different stages of the transaction.38 The obligation to procure goods has been incorporated into the relevant terms, FAS or FOB, which are suitable for a string sale, which refers to one or several consecutive sales while goods are in transit. Parties are free to vary or modify any term; however, they have to be careful to avoid direct or indirect conflict between the original rules and any modifications made by the parties.39 The basic meaning of each term under Incoterms® 2010 is examined

below, using the order and form adopted by Incoterms® 2010. Each term consists of 10 headings, or categories, of responsibilities of both the seller and buyer. [page 12] The discussion of the Incoterms below does not use the original words of the Incoterms as published by the ICC. However, the obligations of the parties are set out in the same format as they are in the official publication of the ICC. 1.18

Calzaturificio Claudia snc v Olivieri Footwear Ltd (1998) US Dist Lexis 4586

The effect of Ex Works is discussed in the context of the CISG Facts: Calzaturificio Claudia snc, the plaintiff, was a shoe manufacturer set up under Italian law, with its principal place of business in Italy. The defendant, Olivieri Footwear Ltd, was a US company based in New York. The parties had an oral agreement for the sale of shoes by the plaintiff to the defendant. Four transactions had taken place. The plaintiff argued that the shoes were delivered to the defendant Ex Works, which means that the plaintiff was not responsible for any risk occurring after the delivery at the plaintiff’s factory. The defendant refused to take part of the delivery in New York and refused to pay the contract price. The plaintiff asked the court to give summary judgment mainly by presenting a number of invoices issued by the plaintiff to the defendant. The invoices contained an ‘Ex Works’ term. Decision: In the absence of any written contract of sale and corroborating evidence, the court found the plaintiff’s argument to be unconvincing, and thus refused to make a summary judgment. When discussing whether or not ‘Ex Works’ was incorporated into the oral contract of sale, the judge referred to the CISG art 19. The court took the view that, if the plaintiff’s invoices represented an acceptance, the terms of the acceptance (invoices) must not contain additions, limitations or other modifications stipulated in the CISG art 19. The court also referred to the CISG art 8, which requires a court to take due consideration of ‘all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties for determining their intention’. After examining the past dealings of the parties, the court was not satisfied that the argument of the plaintiff was supported by past business dealings. Thus, the court did not accept the plaintiff’s argument that the shoes were delivered Ex Works.

EXW — Ex Works EXW (insert named place of delivery) Incoterms® 2010 This term is suitable for any mode of transport. The mode of transport becomes an issue under the term because the term means that the seller delivers when it places the goods at the disposal of the buyer either at the seller’s premises (this is the same as the Incoterms 2000) or at another named place that may be any place other than the seller’s premises (this is the new feature of the term under the Incoterms® 2010). Under the term, the seller is neither responsible for loading goods onto a collecting vehicle, nor for obtaining export clearance, except, where applicable, for the obligation to assist the buyer to clear customs. As a general rule, the seller is responsible for the risk and cost until the goods are delivered under the term. Although risk in the goods passes to the buyer at the seller’s premises or another named place when delivery takes place, the seller is required to give notice of delivery to the buyer to enable the buyer to make arrangements for such things as shipment, insurance and customs procedures. In Calzaturificio Claudia snc v Olivieri Footwear Ltd (1998) US Dist Lexis 4586, the plaintiff alleged that the goods (shoes) were delivered EXW to the defendant. The court held the argument to be unconvincing because, inter alia, the plaintiff did not notify the defendant as required by the EXW term. Under the Incoterms® 2010, the term still represents the minimum obligation for the seller. 1.19

[page 13] A German Federal Supreme Court decision in 2007 gave an interesting illustration of potential use of the EXW term, which is meant to decide rights and obligations between the seller and buyer. In this case, the major concern is whether the goods of trademark-protected shirts were

shipped from Italy on EXW to Mexico and then to Germany. The question in dispute is whether the goods were sold originally within the European Economic Area (EEA); if so, the proprietor of the trademark would not be able to prohibit the German buyer to market the shirts without permission. The court held that the original sale between the Italian seller and Mexican buyer took place within the EEA under the EXW, because the goods were delivered EXW in Italy to the carrier employed by the buyer and the seller lost actual control of the goods after delivery.40 Whether the decision is a good example to illustrate the relationship between the seller and the buyer under the sale of goods law is arguable; however, it is interesting to note that the EXW term can be used by the court as an indicator to decide when and where a sale takes place for the purpose of determining whether a sale takes place within the EEA in order to decide whether trademark right has been exhausted. The major responsibilities of the seller and buyer can be summarised as follows: The Seller

The Buyer

A1 Must provide the goods and documents or B1 Must pay the price of the contract. equivalent electronic records or procedures in A document may also be an equivalent conformity with the contract of sale. electronic record or procedure. A2 Must, where applicable, assist the buyer, at the buyer’s request, risk and expense, to obtain an export licence or other necessary approval for export.

B2 Must, where applicable, obtain at its own risk and expense a licence or other necessary authorisation for export, import or transit through a third country, as the case may be.

A3 Is under no obligation to make contracts for carriage and insurance, but is obliged to provide, where applicable, at the buyer’s request, risk and expense, any information in its possession that is needed for the security clearance of the goods.

B3 Is under no obligation to make contracts of carriage or insurance, but the buyer may have to look into these matters because they are its responsibility upon delivery EXW by the seller.

A4 Must place goods at the disposal of the buyer (similar to ‘putting the goods into a deliverable state’ under the sale of goods B4 Must take delivery as agreed when the legislation in Australia) at the agreed point or goods are delivered by the seller under A4 a suitable point within the named place and at and a notice for delivery has been given by the or within the agreed time, without an seller under A7.

obligation to load the goods on any collecting vehicle.

[page 14]

A5 Bear all risks of loss/damage to goods before delivery, but such risks shall pass to the buyer if the buyer fails to perform its obligation concerning delivery from the agreed place and time for delivery.

B5 Bear risks after goods have been delivered as agreed, and bear additional risks caused by its failure to give sufficient notice for time and place of delivery (if applicable) or take delivery when the goods are identified according to the contract.

A6 Is liable for costs relating to goods before delivery.

B6 Is liable for costs after delivery, and additional costs arising from its failure to take delivery or to give sufficient notice for the time and place of delivery (if applicable) when goods are identified according to the contract, as well as costs for obtaining export, import or transit approval (including reimbursement to the seller for such cost), if applicable.

A7 Give necessary notice for delivery to the buyer.

B7 Give the seller necessary notice for time and place of taking delivery, if applicable.

A8 Is not liable to provide proof of delivery and transport documents or equivalent electronic record or procedure.

B8 Must give the seller evidence of having received the goods after delivery.

A9 Is responsible not only for the cost of necessary checking (such as checking, measuring, weighing, counting), but also for appropriately marking and packaging goods at its own expense in conformity with the B9 Is responsible for costs of mandatory precontract, unless the usual practice of a shipment inspection, except for those particular trade does not require the goods mandated by the export country. concerned to be packaged. In the absence of a specific requirement, it is expected that the packaging will be adequate for the means of transport made known to the seller before the conclusion of the contract. A10 Must provide to or assist the buyer timely in obtaining all necessary documents and security-related information for exporting, importing and transporting the goods at the buyer’s request, risk and expense.

B10 Must advise the seller of any securityrelated information so that the seller may comply with A10. Must reimburse the seller for all costs and expenses incurred under A10.

FCA — Free Carrier FCA (insert named place of delivery) Incoterms® 2010 The term means that the seller delivers the goods, cleared for export where applicable, to the carrier, or any person nominated by the buyer at either the seller’s premises or another named place. Accordingly, the risk in the goods passes to the buyer when the seller delivers the goods to a named carrier or person at a named place. It is suitable for all means of transport. For example, in Fleming & 1.20

[page 15] Wendeln GmbH & Co v SanofiSA/AG,41 the parties to an international contract for the sale of Russian/Ukrainian black sensed crop 1997 agreed in their contract that the price was to ‘be fixed for each shipment latest 15 days prior delivery period FCA (Free Carrier) Russian/Ukrainian Region in railcars on a calculated parity to the FOB Black Sea market or CIF Rotterdam market on proposal of brokers involved in [the] contract’. The statement suggested that the parties had agreed to deliver the goods in FCA terms, but to determine the price for each delivery by referring to either ‘FOB Black Sea market’ price or ‘CIF Rotterdam market’ price, suggesting that not only FCA can be used for the carriage of goods by railways, but also that Incoterms, in particular FOB and CIF, are convenient references for determining prices. The seller’s major obligations include, where applicable, obtaining export clearance at its own risk and expense, and providing evidence of delivery to the buyer. In addition, if delivery takes place at the seller’s premises, the seller is also responsible for loading, but it is only obliged to place the goods at the buyer’s disposal if delivery is to take place in another named place. The specific duties of both parties can be summarised as follows:

The Seller

The Buyer

A1 Must provide the goods and documents or B1 Must pay the price of the contract. equivalent electronic records or procedures in A document may also be an equivalent conformity with the contract of sale. electronic record or procedure. A2 Where applicable, obtain the necessary export licence and customs clearance at its own risk and expense. A3 (i) Is under no obligation to make a contract of carriage, but may do so on the usual terms (unless the buyer gives different instructions in due time) at the buyer’s risk and expense if the buyer so requests or if commercial practice so allows; the seller can refuse to do so, but must promptly notify the buyer of the refusal.

B2 Where applicable, obtain the necessary import licence and customs clearance, as well as approval for transit through a third country, at its own risk and expense.

B3 Must contract at its own expense for the carriage of goods from the named place of delivery, or pay costs and expenses if the seller has arranged the contract of carriage under A3.

The buyer needs to consider the insurance (ii) Is under no obligation to insure the goods, issue even though this is not an obligation to but is obliged at the buyer’s request, risk and the seller. cost (if any), to provide the buyer with the information needed for insuring the goods.

[page 16]

A4 Must deliver goods to the named carrier or another named person at (or within) the agreed time and place. In the absence of an express agreement, the seller may choose one of the available places for delivery that best suits its purpose. Completion of delivery takes two forms: if the named place of delivery is the seller’s premises, the delivery is complete when the B4 Must take delivery of the goods delivered goods have been loaded on the means of in accordance with A4. transport provided by the buyer or its agent; or if the named place of delivery is not the seller’s premises, the delivery is complete when the goods are placed at the disposal

of the carrier or another named person appointed by the buyer while being ready for unloading on the seller’s means of transport. B5 Must bear risk after additional risks caused by:

delivery,

and

its failure to nominate the carrier or another person or give notice under B7;

A5 Risk passes at delivery, or passes to the the failure of the nominated carrier or buyer who causes delay in delivery at the person to take delivery as agreed; agreed time and place of delivery, as the case may be. from the agreed date of delivery, or from the date notified by the buyer to the seller, or from the expiry date of an agreed period for delivery provided that the goods are clearly identified as the contract goods. B6 Must pay all costs after delivery, except for those payable by the seller under A6. The buyer also bears the additional costs caused by: A6 Must pay all costs relating to the goods before delivery except for those payable by the buyer under B6. Where applicable, the seller must pay for the cost for clearing the goods for export.

its failure to nominate the carrier or another person for delivery; failure of the nominated carrier or person to take delivery; or its failure to give sufficient notice under B7, provided that the goods are clearly identified as the contract goods. Where applicable, the buyer is liable for costs for clearing the goods for import and transit through a third country.

A7 Must give sufficient notice to the buyer of the completion, or failure, of the delivery.

B7 Must give the seller sufficient notice of the name of the carrier or any other person, mode of transport, and place and time of delivery, when necessary, to enable the seller to deliver the goods as agreed.

[page 17] A8 Must give the buyer the usual proof of

delivery at the seller’s expense and, at the buyer’s request, risk and expense, assist the buyer to obtain a transport document.

B8 Must accept the proof of delivery as envisaged in A8.

A9 Is responsible not only for the cost of necessary checking (such as checking, measuring, weighing and counting) and mandatory pre-shipment inspection, but also for appropriately marking and packaging goods at its own expense in conformity with B9 Is responsible for costs of mandatory prethe contract, unless the usual practice of a shipment inspection, except for those particular trade does not require the goods mandated by the export country. concerned to be packaged. In the absence of a specific requirement, it is expected that the packaging will be adequate for the means of transport made known to the seller before the conclusion of the contract. A10 Must assist the buyer timely in obtaining all necessary documents and security-related information for importing and transporting the goods at the buyer’s request, risk and expense. The seller must reimburse the buyer for the latter’s costs and expenses in rendering assistance in obtaining documents and information under B10.

B10 Must advise the seller of any securityrelated information so that the seller may comply with A10. Must reimburse the seller for all costs and expenses incurred under A10. Where applicable, at the seller’s request, risk and expense, provide to or render assistance in obtaining documents and security-related information requested by the seller for exporting and transporting the goods.

CPT — Carriage Paid To CPT (insert named place of destination) Incoterms® 2010 The term, which is suitable for any mode or modes of transport, means that the seller makes the contract of carriage and pays all necessary costs to send the goods to the named place of destination. For this purpose, the seller nominates the carrier or any similar person and delivers the goods to the carrier or the person at the agreed place (if available). It must be pointed out that under the term, the place of delivery is where the risk passes to the buyer, but the seller must make the 1.21

necessary arrangements after the delivery to bring the goods to the named place of destination. As a result, the risks and costs are transferred at different places — that is, the place of delivery for the passing of risks and the place of destination for dividing the costs. It further follows that the seller is usually liable for the cost of unloading the goods at the place of destination unless the parties have agreed otherwise. Given the importance of the place of delivery, it is assumed that in cases where several carriers are involved, the risk passes when goods are delivered to the first carrier unless the parties have agreed otherwise. In general terms, the seller is liable to clear the goods for export and transit through any country (where applicable), but not liable to clear the goods to import. The details of this term are as follows: [page 18] The Seller

The Buyer

A1 Must provide the goods and documents or B1 Must pay the price of the contract. equivalent electronic records or procedures in A document may also be an equivalent conformity with the contract of sale. electronic record or procedure. A2 Where applicable, clear the goods for export and transit through any country prior to delivery (referring to the place of delivery where the risk passes to the buyer). A3 Contract or procure a contract (in case of string sales) to carry the goods from the agreed point or place of delivery (where risk passes) to the agreed point or place of destination. The contract of carriage shall be at the seller’s expense, made on the usual terms, via the usual route and in a customary manner. In the absence of agreement, the seller may choose a specific point for delivery at the place of delivery and hand over the goods to the buyer at the place of destination, which best suits its purpose. Although not obliged to the buyer to insure the goods, the seller must provide to the buyer, at

B2 Where applicable, clear the goods for import and transit through any country (referring to any country after delivery has taken place).

B3 Is not obliged to the seller to make a contract of carriage or a contract of insurance, but is obliged to provide the seller, upon request, with the necessary information for obtaining insurance. The buyer shall be aware of the risk in the uninsured goods after delivery.

the latter’s request, risk and expense, with necessary information for the buyer to insure the goods. A4 Deliver goods by handing them over to the nominated carrier or a person at the specific point or place of delivery in pursuance of A3 on the agreed date or within the agreed period.

B4 Take delivery of the goods at the place of delivery as envisaged in A4 and receive the goods from the carrier as agreed at the named place of destination.

B5 Is responsible for risks after delivery and for additional risks arising from its failure to give sufficient notice on the time for A5 Risk passes at delivery, or passes to the dispatching the goods, and/or place of buyer who causes delay in delivery at the destination or the point of receiving goods (if agreed time and place of delivery, as the case applicable) from the agreed date or the expiry may be. date of the agreed period for delivery, provided that the goods are clearly identified as the contract goods. A6 Must pay: all costs relating to the goods before delivery except for those additional costs arising from the delay in delivery caused by the buyer; freight and all costs for carrying the goods to the named destination, in particular the costs of loading and unloading that are under the seller’s account under the contract of carriage; and

B6 Must pay: all costs relating to the goods after delivery, except for those (where applicable) payable by the seller under the term; all costs relating to the goods for transit through any country except for those payable by the seller under the term; costs for unloading the goods which are not for the seller’s account under the contract of carriage;

[page 19]

where applicable, costs for clearing export and transit through any country that are for the seller’s account under the contract of carriage. (It must be emphasised that the obligation to bear the costs for transit through any country must be interpreted by referring to A2 and B2 in any specific contract of sale.)

additional costs arising from its failure to give sufficient notice on the time for dispatching the goods, and/or place of destination or the point of receiving goods (if applicable) from the agreed date or the expiry of the agreed period for dispatch, provided that the goods are clearly identified as the contract goods; and where applicable, costs for clearing the

goods for import, as well as for transit through a third country after delivery. B7 Give sufficient notice to the seller on the A7 Give the buyer sufficient notice of the time for dispatching the goods, and/or place completion of the delivery and other matters to of destination or the point of receiving goods enable it to take delivery. (if applicable). A8 If customary or at the buyer’s request, provide the buyer at the latter’s expense with the usual transport document, which covers the contract goods and is dated within the period agreed for shipment. If agreed or customary, the document must enable the buyer to claim the goods from the carrier at the named B8 Must accept the conforming documents. destination and enable the buyer to sell the goods in transit by transferring the document to a subsequent buyer or by notification to the carrier. If the transport document is negotiable and in several originals, a full set of originals must be presented to the buyer. A9 Is responsible not only for the cost of necessary checking (such as checking, measuring, weighing and counting) and mandatory pre-shipment inspection, but also for appropriately marking and packaging goods at its own expense in conformity with B9 Is responsible for the costs of mandatory the contract, unless the usual practice of a pre-shipment inspection, except for those particular trade does not require the goods mandated by the export country. concerned to be packaged. In the absence of a specific requirement, it is expected that the packaging will be adequate for the means of transport made known to the seller before the conclusion of the contract.

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A10 Must assist the buyer timely in obtaining B10 Must advise the seller of any securityall necessary documents and security-related related information so that the seller may information for importing and transporting the comply with A10. Must reimburse the seller for all costs and

goods at the buyer’s request, risk and expenses incurred under A10. expense. Where applicable, at the seller’s request, risk The seller must reimburse the buyer for the and expense, provide to or render assistance latter’s costs and expenses in rendering in obtaining documents and security-related assistance in obtaining documents and information requested by the seller for information under B10. exporting and transporting the goods.

CIP — Carriage and Insurance Paid To CIP (insert named place of destination) Incoterms® 2010 The term means that the seller makes the contract of carriage and pays all necessary costs to send the goods to the named place of destination. It is essentially the same as CTP in all aspects except for the obligation to insure the goods. Under the term, the seller must insure the goods for the whole carriage until they are handed over to the buyer at the named destination. The insurance contract is based on the minimum coverage as stipulated in A3 of the term. It must be pointed out that like all other Incoterms, CIP has its own special meanings and only contracts bearing terms similar to CIP can be appropriately regarded as being CIP contracts. Therefore, in Stora Enso Oyj v Port of Dundee,42 both the seller and buyer mistakenly agreed to use CIP to describe their contract. The court eventually decided that the contract was not a CIP contract because the terms, in particular those relating to the seller’s obligations to transport goods and to cover the cost of transportation, were not of a CIP nature. In Geofizika DD v MMB International Limited & Ors (The “Green Island”),43 the sales contract was based on the CIP term. The seller did not comply with the contractual term to ship the cargo of vehicles on a roll-on/roll-off (ro-ro) vessel. Instead, the forwarder who acted on behalf of the seller negligently arranged the vehicles to be shipped on deck without the knowledge of the seller. The seller procured an insurance cover under Institute Cargo Clauses A, even though the CIP then requested the seller to obtain minimum cover such as Institute Cargo Clauses C. The insurance cover procured by the seller did not cover the vehicles carried on deck. By the end, two vehicles carried on deck fell into 1.22

the sea. The Court of Appeal of England gave an interesting interpretation to the CIP term in the present case by holding that the seller did not breach its obligation to obtain minimum cover under the CIP term. This decision was largely based on the rationale that even though the insurance obtained did not cover the lost vehicles that were carried on deck, the seller did not breach its obligation to obtain the minimum cover because the Institute Cargo Clauses C could not cover the loss in question either. In other words, as far as the compliance with the CIP term is concerned, the message from the decision is that the seller is considered to have complied with its obligation to obtain the minimum cover if it has obtained a cover higher than the minimum cover, regardless of whether or not the high cover may actually cover the loss in question. [page 21] 1.23

The CIP term includes the following duties:

The Seller

The Buyer

A1 Must provide the goods and documents or B1 Must pay the price of the contract. equivalent electronic records or procedures in A document may also be an equivalent conformity with the contract of sale. electronic record or procedure. A2 Where applicable, clear the goods for export and transit through any country prior to delivery (referring to the place of delivery where the risk passes to the buyer). A3 Contract or procure a contract (in case of string sales) to carry the goods from the agreed point or place of delivery (where risk passes) to the agreed point or place of destination. The contract of carriage shall be at the seller’s expense, made on the usual terms, via the usual route and in a customary manner. In the absence of agreement, the seller may choose a specific point for delivery at the place of delivery and handing over the

B2 Where applicable, clear the goods for import and transit through any country (referring to any country after delivery has taken place).

B3 Is not obliged to the seller to make a contract of carriage or a contract of insurance,

goods to the buyer at the place of destination, but is obliged to provide the seller, upon request, with the necessary information for which best suits its purpose. obtaining insurance and/or additional Obtain at its own expense cargo insurance insurance. complying at least with the minimum cover as provided by Clauses (C) of the Institute Cargo Clauses (LMA/LUA) or any similar clauses. The insurance contract shall be made with underwriters or an insurance company of good repute and entitles the buyer or any other person having an insurable interest in the goods to claim directly from the insurer. Thus, the buyer must provide the buyer with an insurance policy or other evidence of insurance cover. The seller is obliged to buy additional cover for the goods at the request of the buyer, who is liable for providing the necessary information and covering expenses. If procurable, additional cover shall be similar to the Clauses (A) or (B) of the Institute Cargo Clauses (LMA/LUA), and/or Institute War Clauses, and/or Institute Strikes Clauses (LMA/LUA). In cases where the buyer purchases additional insurance, the seller must provide the buyer at the latter’s request, risk and expense with the necessary information for procuring the additional insurance.

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The insurance contract shall cover at a minimum the price of the contract plus 10% (ie, 110% of the contract price) and shall be in the currency of the contract. The insurance shall cover the goods from the point of delivery where the risk passes to the named destination where the goods are handed over to the buyer. A4 Deliver goods by handing them over to the nominated carrier or a person at the specific B4 Take delivery of the goods at the place of point or place of delivery in pursuance of A3

on the agreed date or within the agreed period.

delivery as envisaged in A4 and receive the goods from the carrier as agreed at the named place of destination.

B5 Is responsible for risks after delivery and for additional risks arising from its failure to give sufficient notice on the time for A5 Risk passes at delivery, or passes to the dispatching the goods, and/or place of buyer who causes delay in delivery at the destination or the point of receiving goods (if agreed time and place of delivery, as the case applicable) from the agreed date or the expiry may be. date of the agreed period for delivery, provided that the goods are clearly identified as the contract goods. A6 Must pay: all costs relating to the goods before B6 Must pay: delivery except for those additional costs arising from the delay in delivery caused by all costs relating to the goods after delivery, except for those (where applicable) payable the buyer; freight and all costs for carrying the goods by the seller under the term; to the named destination, in particular the costs of loading and unloading that are under the seller’s account under the contract of carriage; the costs of insurance arising from A3; and where applicable, costs for clearing export and transit through any country that are for the seller’s account under the contract of carriage. (It must be emphasised that the obligation to bear the costs for transit through any country must be interpreted by referring to A2 and B2 in any specific contract of sale.)

all costs relating to the goods for transit through any country except for those payable by the seller under the term; costs for unloading the goods that are not for the seller’s account under the contract of carriage; where applicable, costs for clearing the goods for import, as well as for transit through a third country after delivery; and the costs of any additional insurance procured at the buyer’s request.

B7 Give sufficient notice to the seller on the A7 Give the buyer sufficient notice of the time for dispatching the goods, and/or place completion of the delivery and other matters to of destination or the point of receiving goods enable it to take delivery. (if applicable). A8 If customary or at the buyer’s request, provide the buyer at the latter’s expense with the usual transport document, which covers the contract goods and is dated within the period B8 Must accept the conforming documents. agreed for shipment. If agreed or customary, the document must enable the buyer to claim the

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goods from the carrier at the named destination and enable the buyer to sell the goods in transit by transferring the document to a subsequent buyer or by notification to the carrier. If the transport document is negotiable and in several originals, a full set of originals must be presented to the buyer. A9 Is responsible not only for the cost of necessary checking (such as checking, measuring, weighing and counting) and mandatory pre-shipment inspection, but also for appropriately marking and packaging goods at its own expense in conformity with B9 Is responsible for the costs of mandatory the contract, unless the usual practice of a pre-shipment inspection, except for those particular trade does not require the goods mandated by the export country. concerned to be packaged. In the absence of a specific requirement, it is expected that the packaging will be adequate for the means of transport made known to the seller before the conclusion of the contract. A10 Must assist the buyer timely in obtaining all necessary documents and security-related information for importing and transporting the goods at the buyer’s request, risk and expense. The seller must reimburse the buyer for the latter’s costs and expenses in rendering assistance in obtaining documents and information under B10.

B10 Must advise the seller of any securityrelated information so that the seller may comply with A10. Must reimburse the seller for all costs and expenses incurred under A10. Where applicable, at the seller’s request, risk and expense, provide to or render assistance in obtaining documents and security-related information requested by the seller for exporting and transporting the goods.

DAT — Delivered at Terminal DAT (insert named terminal at port or place of destination) Incoterms® 2010

The term is suitable for any mode or modes of transport. It means that the seller delivers the goods when they are not only unloaded from the arriving means of transport, but also placed at the disposal of the buyer at a named terminal of the named destination, which can be a port or any other place. The word ‘terminal’ has the same meaning as ‘place’. The seller bears all risks before the goods are delivered at the named terminal. Since ‘terminal’ is not necessarily a small place in any physical sense, the parties are well advised to specify as clearly as possible the specific point of delivery within the named terminal. It must be pointed out that under the term, the seller is required to clear the goods for export (if applicable), but is not expected to clear the goods for import even though the goods may only be delivered after being imported into the country of destination. If the parties intend the seller to bear the risks and costs for transporting and handling the goods from the named terminal to 1.24

[page 24] another place of the destination, the DAP or DDP rules are better choices than the DAT. The duties of the seller and buyer are summarised in the following table: The Seller

The Buyer

A1 Must provide the goods and documents or B1 Must pay the price of the contract. equivalent electronic records or procedures in A document may also be an equivalent conformity with the contract of sale. electronic record or procedure. A2 Where applicable, the seller must at its risk and expense clear the goods for export and transit through any country prior to delivery. B2 Where applicable, the buyer must at its The seller is not obliged to the buyer to insure own risk and expense clear the goods for the goods, but is obliged to the buyer at the import. latter’s request, risk and expense to provide information for the buyer to insure the goods.

A3 Makes contract of carriage at its own expense to transport the goods to the named terminal of the destination. If a specific terminal is not agreed or determined by practice, the seller may select the terminal at the agreed destination that best suits its purpose.

B3 Is not obliged to the seller to make a contract of carriage or a contract of insurance, but is obliged to provide the seller upon the latter’s request with the necessary information for the seller to insure the goods (if The seller is not obliged to the buyer to insure applicable). the goods, but is obliged to the buyer at the latter’s request, risk and expense to provide information for the buyer to insure the goods. A4 Must unload the goods from the arriving means of transport and deliver them by placing them at the disposal of the buyer at the named terminal of the named destination on the agreed date or within the agreed period.

B4 Must take delivery of the goods when they have been delivered in accordance with A4.

B5 Bear all risks after the goods have been delivered in accordance with A4. But if the buyer fails to fulfil its obligation in accordance with B2, it shall bear the consequential risks A5. Risk passes at delivery, or passes to the for the failure. Similarly, if the seller fails to buyer who causes delay in delivery at the agreed time and place of delivery, as the case give notice on the time and point for receiving the goods at the named terminal, it shall bear may be. the relevant risk from the agreed date or the expiry of the agreed period for delivery, provided that the goods are clearly identified as the contract goods. A6 Must pay: all costs relating to the goods prior to delivery at the named terminal except for those payable by the buyer under the term; and

B6 Must pay: all costs relating to the goods from the time they have been delivered in accordance with A4;

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where applicable, all costs for clearing the

all additional costs resulting from the buyer’s failure to clear the goods for import or to give notice on the time and point of receiving goods at the named terminal,

goods for export and transit through any country prior to delivery.

provided that the goods have been clearly identified as the contract goods; and where applicable, the costs for clearing the goods for import.

B7 Give the seller necessary notice on the A7 Give the buyer necessary notice to enable time and point of receiving the goods at the the buyer to take delivery of the goods. named terminal, if applicable. A8 Provide the buyer, at the seller’s expense, with a document enabling the buyer to take delivery of the goods. A9 Is responsible not only for the cost of necessary checking (such as checking, measuring, weighing and counting) and mandatory pre-shipment inspection, but also for appropriately marking and packaging the goods at its own expense in conformity with the contract, unless the usual practice of a particular trade does not require the goods concerned to be packaged.

B8 Must accept the delivery document as envisaged in A8.

B9 Is responsible for the costs of mandatory pre-shipment inspection, except for those mandated by the export country.

In the absence of a specific requirement, it is expected that the packaging will be adequate for the means of transport made known to the seller before the conclusion of the contract. A10 Must assist the buyer timely in obtaining all necessary documents and security-related information for importing and transporting the goods at the buyer’s request, risk and expense. The seller must reimburse the buyer for the latter’s costs and expenses in rendering assistance in obtaining documents and information under B10.

B10 Must advise the seller of any securityrelated information so that the seller may comply with A10. Must reimburse the seller for all costs and expenses incurred under A10. Where applicable, at the seller’s request, risk and expense, provide to or render assistance in obtaining documents and security-related information requested by the seller for exporting and transporting the goods.

DAP — Delivered at Place DAP (insert named place of destination) Incoterms® 2010 1.25

The term, which suits all modes of transport, means that the seller

delivers the goods by placing the goods that are ready for unloading but not yet unloaded from the arriving means of transport at the disposal of the buyer at the named place of destination. As far as the mode of delivery is concerned, whether the goods have been unloaded from the arriving means of transport is the key difference between [page 26] the DAT term and DAP term. The seller bears all risks for bringing the goods to the named place or the specified point within the named place. Although the goods can be delivered when they are only ready for unloading, the cost for unloading the goods at the place of destination is usually borne by the seller unless the parties agree otherwise. Under the DAP term, the seller is responsible for clearing the goods for export, where applicable, but is not responsible for clearing the goods for import. By comparison, the DDP term requires the seller to clear the goods for import. The duties of the seller and buyer are summarised in the following table: The Seller

The Buyer

A1 Must provide the goods and documents or B1 Must pay the price of the contract. equivalent electronic records or procedures in A document may also be an equivalent conformity with the contract of sale. electronic record or procedure. A2 Where applicable, the seller must at its risk B2 Where applicable, the buyer must at its and expense clear the goods for export and own risk and expense clear the goods for transit through any country prior to delivery. import. A3 Makes contract of carriage at its own expense to transport the goods to the named place of the destination or a point within the place. If a specific point of delivery is not agreed or determined by practice, the seller may select a point at the named destination that best suits its purpose.

B3 Is not obliged to the seller to make a contract of carriage or a contract of insurance, but is obliged to provide the seller upon the latter’s request with the necessary information The seller is not obliged to the buyer to insure for the seller to insure the goods (if the goods, but is obliged to the buyer at the applicable).

latter’s request, risk and expense to provide information for the buyer to insure the goods. A4 Must deliver goods by placing the goods that are ready for unloading but not yet unloaded from the arriving means of transport B4 Must take delivery of the goods when they at the disposal of the buyer at the named point have been delivered in pursuance of A4. or place of destination on the agreed date or within the agreed period. B5 Bear all risks after the goods have been delivered in accordance with A4. But if the buyer fails to fulfil its obligation in accordance with B2, it shall bear the consequential risks A5. Risk passes at delivery, or passes to the for the failure. Similarly, if the seller fails to buyer who causes delay in delivery at the agreed time and place of delivery, as the case give notice on the time and point for receiving the goods at the named terminal, it shall bear may be. the relevant risk from the agreed date or the expiry of the agreed period for delivery, provided that the goods are clearly identified as the contract goods.

[page 27] B6 Must pay: A6 Must pay: all costs relating to the goods prior to delivery at the named point or place of destination except for those payable by the buyer under the term; charges for unloading the goods at the named point or place of destination when such charges are for the seller’s account under the contract of carriage; and where applicable, all costs for clearing the goods for export and transit through any country prior to delivery.

all costs relating to the goods from the time they have been delivered in accordance with A4; costs of unloading necessary for taking delivery of the goods from the arriving means of transport under B4 unless such costs are for the seller’s account under the contract of carriage; all additional costs resulting from the buyer’s failure to clear the goods for import or to give notice on the time and point of receiving goods at the named destination, provided that the goods have been clearly identified as the contract goods; and where applicable, the costs for clearing the goods for import.

A7 Give the buyer necessary notice to enable B7 Give the seller necessary notice on the time and point of receiving the goods at the the buyer to take delivery of the goods.

named destination, if applicable. A8 Provide the buyer, at the seller’s expense, with a document enabling the buyer to take delivery of the goods. A9 Is responsible not only for the cost of necessary checking (such as checking, measuring, weighing and counting) and mandatory pre-shipment inspection, but also for appropriately marking and packaging the goods at its own expense in conformity with the contract, unless the usual practice of a particular trade does not require the goods concerned to be packaged.

B8 Must accept the delivery document as envisaged in A8.

B9 Is responsible for the costs of mandatory pre-shipment inspection, except for those mandated by the export country.

In the absence of a specific requirement, it is expected that the packaging will be adequate for the means of transport made known to the seller before the conclusion of the contract. A10 Must assist the buyer timely in obtaining all necessary documents and security-related information for importing and transporting the goods at the buyer’s request, risk and expense. The seller must reimburse the buyer for the latter’s costs and expenses in rendering assistance in obtaining documents and information under B10.

B10 Must advise the seller of any securityrelated information so that the seller may comply with A10. Must reimburse the seller for all costs and expenses incurred under A10. Where applicable, at the seller’s request, risk and expense, provide to or render assistance in obtaining documents and security-related information requested by the seller for exporting and transporting the goods.

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DDP — Delivered Duty Paid DDP (insert named place of destination) Incoterms® 2010 The term, which suits all modes of transport, means that the seller delivers the goods by placing them at the disposal of the buyer at the named place of destination, while the goods are cleared for import and 1.26

are ready for unloading on the arriving means of transport. The seller not only bears the costs and risks for bringing the goods to the named place of destination, but also has an obligation to clear the goods for export, import and transit through any third country. The seller is responsible for the cost of unloading the goods at the named destination unless the parties agree otherwise. The DDP term represents the maximum obligation for the seller. The details of the term are set out in the following table: The Seller

The Buyer

A1 Must provide the goods and documents or B1 Must pay the price of the contract. equivalent electronic records or procedures in A document may also be an equivalent conformity with the contract of sale. electronic record or procedure. B2 Where applicable, the buyer must at the A2 Where applicable, the seller must at its risk seller’s request, risk and expense provide and expense clear the goods for export and assistance to the seller in clearing the goods transit through any country. for import. A3 Makes a contract of carriage at its own expense to transport the goods to the named place of the destination or a point within the place. If a specific point of delivery is not agreed or determined by practice, the seller may select a point at the named destination that best suits its purpose.

B3 Is not obliged to the seller to make a contract of carriage or a contract of insurance, but is obliged to provide the seller upon the latter’s request with the necessary information for the seller to insure the goods (if The seller is not obliged to the buyer to insure applicable). the goods, but is obliged to the buyer at the latter’s request, risk and expense to provide information for the buyer to insure the goods. A4 Must deliver goods by placing the goods that are ready for unloading but not yet unloaded from the arriving means of transport B4 Must take delivery of the goods when they at the disposal of the buyer at the named point have been delivered in pursuance of A4. or place of destination on the agreed date or within the agreed period. B5 Bear all risks after the goods have been delivered in accordance with A4. But if the A5 Risk passes at delivery, or passes to the buyer fails to fulfil its obligation in accordance buyer who causes delay in delivery at the with B2, it shall bear the consequential risks agreed time and place of delivery, as the case for the failure. Similarly, if the seller fails to may be. give notice on the time and point for receiving

the goods at

[page 29] the named terminal, it shall bear the relevant risk from the agreed date or the expiry of the agreed period for delivery, provided that the goods are clearly identified as the contract goods. A6 Must pay: all costs relating to the goods prior to delivery at the named point or place of destination except for those payable by the buyer under the term; charges for unloading the goods at the named point or place of destination when such charges are for the seller’s account under the contract of carriage; and where applicable, all costs for clearing the goods for export and transit through any country.

B6 Must pay: all costs relating to the goods from the time they have been delivered in accordance with A4; costs of unloading necessary for taking delivery of the goods from the arriving means of transport under B4 unless such costs are for the seller’s account under the contract of carriage; all additional costs resulting from the buyer’s failure under B2 or B7, provided that the goods have been clearly identified as the contract goods.

B7 Give the seller necessary notice on the A7 Give the buyer necessary notice to enable time and point of receiving the goods at the the buyer to take delivery of the goods. named destination, if applicable. A8 Provide the buyer, at the seller’s expense, with a document enabling the buyer to take delivery of the goods. A9 Is responsible not only for the cost of necessary checking (such as checking, measuring, weighing and counting) and mandatory pre-shipment inspection, but also for appropriately marking and packaging the goods at its own expense in conformity with the contract, unless the usual practice of a particular trade does not require the goods concerned to be packaged. In the absence of a specific requirement, it is expected that the packaging will be adequate for the means of transport made known to the seller before the conclusion of the contract.

B8 Must accept the delivery document as envisaged in A8s.

B9 Is responsible for the costs of mandatory pre-shipment inspection, except for those mandated by the export country.

A10 Must assist the buyer timely in obtaining all necessary documents and security-related information for importing and transporting the goods at the buyer’s request, risk and expense. The seller must reimburse the buyer for the latter’s costs and expenses in rendering assistance in obtaining documents and information under B10.

B10 Must advise the seller of any securityrelated information so that the seller may comply with A10. Must reimburse the seller for all costs and expenses incurred under A10. Where applicable, at the seller’s request, risk and expense, provide to or render assistance in obtaining documents and security-related information requested by the seller for exporting and transporting the goods.

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FAS — Free Alongside Ship FAS (insert named port of shipment) Incoterms® 2010 The term, which is suitable for sea or inland waterway transport, means that the seller delivers the goods by placing them alongside the named vessel at a specific loading point, such as a specific quay or barge, at the named port of shipment. The risks and costs are with the seller before delivery and move to the buyer after delivery. Under the term, the seller is required either to deliver the goods alongside the vessel or procure goods already so delivered for shipment. In the case of container shipping, where containers are usually handed over to the carrier who may or may not receive goods alongside the vessel, the FCA term is a better term to use. Under the FAS term, the seller, where applicable, is obliged to clear goods for export, but not obliged to clear the goods for import or transit through third countries. The major duties of the seller and buyer are shown in the following table: 1.27

The Seller

The Buyer

A1 Must provide the goods and documents or B1 Must pay the price of the contract. A document may also be an equivalent

equivalent electronic records or procedures in electronic record or procedure. conformity with the contract of sale. A2 Where applicable, obtain the necessary export licence and customs clearance at its own risk and expense. A3 (i) Is under no obligation to make a contract of carriage, but may do so on the usual terms (unless the buyer gives different instructions in due time) at the buyer’s risk and expense if the buyer so requests or if commercial practice so allows; the seller can refuse to do so, but must promptly notify the buyer of the refusal.

B2 Where applicable, obtain the necessary import licence and customs clearance, as well as approval for transit through a third country, at its own risk and expense.

B3 Must contract at its own expense for the carriage of goods from the named place of delivery, or pay costs and expenses if the seller has arranged the contract of carriage under A3.

The buyer needs to consider the insurance (ii) Is under no obligation to insure the goods, issue even though this is not an obligation to but is obliged at the buyer’s request, risk and the seller. cost (if any), to provide the buyer with the information needed for insuring the goods. A4 Must deliver goods by placing them alongside the nominated vessel at the specific loading point, if any, or the named place of shipment. The seller may also make a delivery B4 Must take delivery of the goods delivered by procuring the goods so delivered. In either in accordance with A4. case, the seller must deliver the goods on the agreed date or within the agreed period and in the manner customary at the named port of shipment.

[page 31] If no specific loading point has been indicated by the buyer, the seller may select the point within the named port of shipment that best suits its purpose. If the parties only agree on a period of delivery, the seller may choose the date of delivery within the period. B5 Must bear risks after delivery, and additional risks caused by: its failure to give notice under B7; or A5 Risk passes at delivery, or passes to the buyer who causes delay in delivery at the

the vessel nominated by the buyer fails to

agreed time and place of delivery, as the case may be.

arrive on time, or fails to take the goods as agreed, from the agreed date of delivery, or the expiry date of an agreed period for delivery provided that the goods are clearly identified as the contract goods. B6 Must pay all costs after delivery, except for those payable by the seller under A6. The buyer also bears the additional costs caused by:

A6 Must pay all costs relating to the goods before delivery except for those payable by the buyer under B6.

its failure to give sufficient notice under B7; or failure of the nominated carrier or person to take delivery,

Where applicable, the seller must pay for the costs for clearing the goods for export. provided that the goods are clearly identified as the contract goods. Where applicable, the buyer is liable for costs for clearing the goods for import and transit through a third country. A7 Must give sufficient notice to the buyer of the completion, or failure, of the delivery.

B7 Must give the seller sufficient notice of the vessel name, loading point and, where necessary, the time of delivery within the agreed period.

A8 Must give the buyer the usual proof of delivery at the seller’s expense and, at the buyer’s request, risk and expense, assist the buyer to obtain a transport document.

B8 Must accept the proof of delivery as envisaged in A8.

A9 Is responsible not only for the cost of necessary checking (such as checking, measuring, weighing and counting) and mandatory pre-shipment inspection, but also for appropriately marking and packaging the goods at its own expense in conformity with the contract, unless the usual practice of a particular trade does not require the goods concerned to be packaged.

B9 Is responsible for the costs of mandatory pre-shipment inspection, except for those mandated by the export country.

[page 32] In the absence of a specific requirement, it is

expected that the packaging will be adequate for the means of transport made known to the seller before the conclusion of the contract. A10 Must assist the buyer timely in obtaining all necessary documents and security-related information for importing and transporting the goods at the buyer’s request, risk and expense. The seller must reimburse the buyer for the latter’s costs and expenses in rendering assistance in obtaining documents and information under B10.

1.28

B10 Must advise the seller of any securityrelated information so that the seller may comply with A10. Must reimburse the seller for all costs and expenses incurred under A10. Where applicable, at the seller’s request, risk and expense, provide to or render assistance in obtaining documents and security-related information requested by the seller for exporting and transporting the goods.

Metro Meat Ltd v Fares Rural Co Pty Ltd [1985] 2 Lloyd’s Rep 13 (PC)

FAS contract and additional terms — buyer purchases in FAS terms but then sells in CFR terms Facts: Metro Meat was the appellant and seller in an FAS contract for the sale of lamb, and Fares Rural was the respondent and buyer. The parties agreed orally in July 1979 for the sale of a quantity of lamb in FAS terms at one of two ports in Australia (Adelaide or Fremantle) for shipment to Bandar Shahpour in Iran. The oral agreement was confirmed in writing by several telexes later exchanged between the parties. The seller knew that the buyer bought the goods for the purpose of fulfilling its obligations as a seller under a matching contract in CFR terms to the Iranian Meat Organisation. The quantity of goods in both contracts was 20,000 t, with a tolerance of 10 per cent more or less at the seller’s option. Thus, the minimum quantity of goods under the FAS contract was 18,000 t, which was to be delivered in five consecutive instalments. The buyer thus chartered a vessel to carry the goods. Three instalments were delivered as agreed, totalling 10,843 t. The market price of lamb rose in 1980. The seller refused to deliver the remaining two instalments for a reason that was rejected by the trial court. The court also held that several terms in dispute were consistent with the FAS contract. For example, the quantity of goods was agreed as 20,000 t, with a tolerance of 10 per cent more or less at the seller’s option; and the buyer agreed to pay an additional US$125 per t for the purpose of encouraging the seller to perform its obligation to deliver the remaining quantity. The Supreme Court of Western Australia held that the buyer was entitled to accept repudiation of the contract and claim damages. The seller appealed to the Privy Council. Decision: The Judicial Committee of the Privy Council (consisting of Lord Scarman, Lord Diplock, Lord Roskill, Lord Brightman and Sir Denys Buckley) upheld the finding of the trial

judge that the seller’s conduct constituted an anticipatory breach, and accordingly dismissed the appeal.

In Metro Meat Ltd v Fares Rural Co Pty Ltd [1985] 2 Lloyd’s Rep 13 (PC), both the trial court and the Privy Council emphasised the fact that, by refusing to deliver the remaining quantity of lamb, the seller had committed an anticipatory breach of a fundamental term. Because of the anticipatory breach, the buyer was entitled to damages. Alternatively, in light of the FAS term, the seller might have been found in breach of A1 and A4, under which the seller is obliged to deliver goods in the quality, quantity and description agreed, at the time and place agreed. In addition, the increase 1.29

[page 33] in the market price, which was the real reason for the seller’s anticipatory breach, can be regarded as an issue of risk, which must be borne by the seller under A5 before delivery. The problem with the operation of A5 is that the ‘risk’ under A5 and B5 may be limited to the risk of loss of, or damage to, the goods. Thus, a decrease in the market price may not be a relevant loss under those headings. Another feature of this case is that Fares Rural Co Pty Ltd was actually an intermediary that purchased in the FAS term and sold the same goods in CFR terms. Such a combination is possible because, in both situations, Fares Rural was responsible for making the shipping arrangements.

FOB — Free on Board FOB (insert named port of shipment) Incoterms® 2010 The term, which is suitable for sea and inland waterway transport, means that the seller delivers the goods by placing them on board the vessel nominated by the buyer at the named port of shipment or procures 1.30

the goods already so delivered. The seller bears all risks and costs before delivery. It is necessary to point out that when the goods are handed over to the carrier before loading, such as with containerised goods, the FCA term is a better choice than the FOB term that requires the goods to be placed on board the vessel for the purpose of delivery. In general terms, under the FOB term, the seller is required to clear the goods for export, where applicable, but is not required to clear the goods for import. The major duties of the parties under this term are as follows: The Seller

The Buyer

A1 Must provide the goods and documents or B1 Must pay the price of the contract. equivalent electronic records or procedures in A document may also be an equivalent conformity with the contract of sale. electronic record or procedure. A2 Where applicable, obtain the necessary export licence and customs clearance at its own risk and expense. A3 (i) Is under no obligation to make a contract of carriage, but may do so on the usual terms (unless the buyer gives different instructions in due time) at the buyer’s risk and expense if the buyer so requests or if commercial practice so allows; the seller can refuse to do so, but must promptly notify the buyer of the refusal.

B2 Where applicable, obtain the necessary import licence and customs clearance, as well as approval for transit through a third country, at its own risk and expense.

B3 Must contract at its own expense for the carriage of goods from the named place of delivery, or pay costs and expenses if the seller has arranged the contract of carriage under A3.

The buyer needs to consider the insurance (ii) Is under no obligation to insure the goods, issue even though this is not an obligation to but is obliged at the buyer’s request, risk and the seller. cost (if any), to provide the buyer with the information needed for insuring the goods.

[page 34] A4 Must deliver goods by placing them on board the nominated vessel at the specific loading point, if any, or the named place of shipment. The seller may also make a delivery by procuring the goods so delivered. In either

case, the seller must deliver the goods on the B4 Must take delivery of the goods delivered agreed date or within the agreed period and in accordance with A4. in the manner customary at the named port of shipment. If no specific loading point has been indicated by the buyer, the seller may select the point within the named port of shipment that best suits its purpose. B5 Must bear risk after delivery, and additional risks caused by: its failure to give notice under B7; or the vessel nominated by the buyer fails to A5 Risk passes at delivery, or passes to the arrive on time, or fails to take the goods as buyer who causes delay in delivery at the agreed, agreed time and place of delivery, as the case may be. from the agreed date of delivery, from the date notified by the seller under A7 if available, or the expiry date of an agreed period for delivery provided that the goods are clearly identified as the contract goods. B6 Must pay all costs after delivery, except for those payable by the seller under A6. The buyer also bears the additional costs caused by: A6 Must pay all costs relating to the goods before delivery except for those payable by the buyer under B6.

its failure to give sufficient notice under B7; or failure of the nominated vessel to take delivery,

Where applicable, the seller must pay for the cost for clearing the goods for export. provided that the goods are clearly identified as the contract goods. Where applicable, the buyer is liable for costs for clearing the goods for import and transit through a third country. A7 Must give sufficient notice to the buyer of the completion, or failure, of the delivery.

B7 Must give the seller sufficient notice of the vessel name, loading point and, where necessary, the time of delivery within the agreed period.

A8 Must give the buyer the usual proof of delivery at the seller’s expense and, at the buyer’s request, risk and expense, assist the buyer to obtain a transport document.

B8 Must accept the proof of delivery as envisaged in A8.

A9 Is responsible not only for the cost of necessary checking (such as checking,

B9 Is responsible for the costs of mandatory

measuring, weighing and counting) and mandatory pre-shipment inspection, but also

pre-shipment inspection, except for those mandated by the export country.

[page 35] for appropriately marking and packaging the goods at its own expense in conformity with the contract, unless the usual practice of a particular trade does not require the goods concerned to be packaged. In the absence of a specific requirement, it is expected that the packaging will be adequate for the means of transport made known to the seller before the conclusion of the contract. A10 Must assist the buyer timely in obtaining all necessary documents and security-related information for importing and transporting the goods at the buyer’s request, risk and expense. The seller must reimburse the buyer for the latter’s costs and expenses in rendering assistance in obtaining documents and information under B10.

B10 Must advise the seller of any securityrelated information so that the seller may comply with A10. Must reimburse the seller for all costs and expenses incurred under A10. Where applicable, at the seller’s request, risk and expense, provide to or render assistance in obtaining documents and security-related information requested by the seller for exporting and transporting the goods.

CFR — Cost and Freight CFR (insert named port of destination) Incoterms® 2010 The term, which is suitable for sea and inland waterway carriage, means that the seller delivers the goods by placing them on board the vessel, which shall be contracted by the seller, or procures the goods already so delivered. The seller is obliged to make a contract of carriage at its own expense. When the seller procures goods that are already delivered on board a vessel, the seller must obtain not only the goods but also the contract of carriage as if the contract is made by itself. The seller bears all risks in the goods until delivery, which takes place before 1.31

handing the goods over to the buyer at the destination, but bears all costs relating to the goods when the goods are handed over to the buyer at the named port of destination. Thus, the place of delivery and place of handing goods over to the buyer are different. This is the common feature of CFR, CPT, CIP and CIF. In general terms, the seller bears the cost for unloading the goods at the port of destination unless the parties agree otherwise. The CFR term requires the seller to clear the goods for export, where applicable, but does not require the seller to clear the goods for import. The major duties of the parties under this term are as follows: The Seller

The Buyer

A1 Must provide the goods and documents or B1 Must pay the price of the contract. equivalent electronic records or procedures in A document may also be an equivalent conformity with the contract of sale. electronic record or procedure.

[page 36]

A2 Where applicable, clear the goods for export at its own risk and expense. A3 Contract or procure a contract (in case of string sales) to carry the goods from the agreed point or place of delivery (where risk passes) to the agreed point or place of destination. The contract of carriage shall be at the seller’s expense, made on the usual terms, via the usual route and using a vessel suitable to carry the goods concerned.

B2 Where applicable, clear the goods for import and transit through any country at its own risk and expense.

B3 Is not obliged to the seller to make contract of carriage or insurance, but is obliged to provide the seller, upon request, with the necessary information for obtaining insurance (if applicable).

Although not obliged to the buyer to insure the The buyer shall be aware of the risk in the goods, the seller must provide to the buyer, at uninsured goods after delivery. the latter’s request, risk and expense, with the necessary information for the buyer to insure the goods. A4 Deliver goods by placing them on board the vessel or by procuring the goods so delivered. In either case, the goods must be

B4 Take delivery of the goods at the place of delivery as envisaged in A4 and receive the

delivered on the agreed date or within the goods from the carrier as agreed at the agreed period in the manner customary at the named place of destination. port of delivery. B5 Is responsible for risks after delivery and for additional risks arising from its failure to A5 Risk passes at delivery, or passes to the give sufficient notice on the time for shipping buyer who causes delay in delivery at the the goods, and/or place of destination or the agreed time and place of delivery, as the case point of receiving goods (if applicable) from may be. the agreed date or the expiry of the agreed period for delivery, provided that the goods are clearly identified as the contract goods. B6 Must pay: A6 Must pay: all costs relating to the goods before delivery except for those additional costs arising from the delay in delivery caused by the buyer; freight and all costs for carrying the goods to the named destination, in particular the costs of loading and unloading that are under the seller’s account under the contract of carriage; and where applicable, costs for clearing export and transit through any country that are for the seller’s account under the contract of carriage. (It must be emphasised that the obligation to bear the costs for transit through any country must be interpreted by referring to A2 and B2 in any specific contract of sale.)

all costs relating to the goods after delivery, except for those (where applicable) payable by the seller under the term; all costs relating to the goods for transit through any country except for those payable by the seller under the contract of carriage; costs for unloading the goods (including lighterage and wharfage charges), which are not for the seller’s account under the contract of carriage; additional costs arising from its failure to give sufficient notice on the time for shipping the goods, and/or place of destination or the point of receiving goods (if applicable) from the agreed date or the expiry of the agreed period for shipment, provided that the goods are clearly identified as the contract goods; and

[page 37]

where applicable, costs for clearing goods for import, as well as transit through a third country after delivery. B7 Give sufficient notice to the seller on the A7 Give the buyer sufficient notice to allow the time for shipping the goods, and/or place of buyer to take delivery. destination or the point of receiving goods (if applicable).

A8 Must at its own expense provide the buyer with the usual transport document for the goods, which must be dated within the agreed period for shipment, unless agreed otherwise, and enable the buyer to claim the goods from the carrier or to sell the goods in transit by B8 Must accept the conforming documents. transferring the document to a sub-buyer or by notification to the carrier. When such a transport document is issued in negotiable form and in several originals, a full set of originals must be presented to the buyer. A9 Is responsible not only for the cost of necessary checking (such as checking, measuring, weighing and counting) and mandatory pre-shipment inspection, but also for appropriately marking and packaging the goods at its own expense in conformity with the contract, unless the usual practice of a particular trade does not require the goods concerned to be packaged.

B9 Is responsible for the costs of mandatory pre-shipment inspection, except for those mandated by the export country.

In the absence of a specific requirement, it is expected that the packaging will be adequate for the means of transport made known to the seller before the conclusion of the contract. A10 Must assist the buyer timely in obtaining all necessary documents and security-related information for importing and transporting the goods at the buyer’s request, risk and expense. The seller must reimburse the buyer for the latter’s costs and expenses in rendering assistance in obtaining documents and information under B10.

B10 Must advise the seller of any securityrelated information so that the seller may comply with A10. Must reimburse the seller for all costs and expenses incurred under A10. Where applicable, at the seller’s request, risk and expense, provide to or render assistance in obtaining documents and security-related information requested by the seller for exporting and transporting the goods.

The essential characteristic of CFR is that the seller engages the services of the carrier and the freight cost is covered in the selling price of the goods. In Scottish & Newcastle International Ltd v Othon Ghalanos Ltd,44 the contract of sale was concluded 1.32

[page 38]

expressly on the basis of FOB terms; however, for some unexplained reason the buyer requested the seller to write ‘CFR Limassol’ in the bill of lading and asked the seller to pay freight on the buyer’s behalf first and to charge freight separately in the invoice to the buyer. Whether this was an FOB or CFR contract became crucial later in the case when the seller sued the buyer for the unpaid price in an English court of law. In order to avoid conflict of jurisdictions in sale of goods disputes, Council Regulation (EC) No 44/2001 s 5(1) permits an action to be taken in the place of delivery. The Cyprus buyer believed that the place of delivery in CFR was the port of discharge and accordingly insisted that this was a CFR contract. The Scottish seller argued this was an FOB contract and accordingly the place of delivery was Liverpool. The House of Lords indorsed the trial court decision that the contract was FOB and the place of delivery was Liverpool; accordingly, the English court had jurisdiction over the dispute. This case illustrates the flexibility of FOB terms and the crucial test for differentiating between FOB and CFR. However, the author wishes to point out that the Cyprus buyer’s view that CFR Limassol suggests the place of delivery to be Limassol is questionable, although the House of Lords did not address this issue directly in the present case. Under CFR, the risk passes to the buyer after the goods have been delivered on board the named vessel. This is the ‘delivery’, and the only ‘delivery’, which is meaningful to the seller and the buyer under the term. After this the CFR provides no more ‘delivery’ in law. Therefore, in order to decide the place of delivery in a contract of sale for the purpose of Council Regulation (EC) No 44/2001 s 5(1), it is necessary to examine the contract of sale itself, or a combination of the sales contract and CFR, rather than CFR alone, because it is better to ascertain the place of delivery for the purpose of the said legislation by looking at both the contract of sale and the CFR terms.

CIF — Cost, Insurance and Freight CIF (insert the named port of destination) Incoterms®

2010 The term is suitable for sea and inland waterway carriage. ‘Cost, Insurance and Freight’ means that the seller delivers the goods on board the vessel or procures the goods already so delivered. This differs from the original position under Incoterms 2000 where the delivery takes place when the goods pass the ship’s rail. Presently, the risk of loss of or damage to the goods passes when the goods are placed on board the vessel. ‘Cost, Insurance and Freight’ also means that the seller must contract for and pay the costs and freight necessary to bring the goods to the named port of destination. However, it must be emphasised that the seller is required to obtain insurance on goods only on minimum cover, and thus additional risks may be insured by the seller on behalf of the buyer only at the latter’s request and expense. Under the CIF rule, the place of delivery and the place where the goods are actually handed over to the buyer are two different points. The former is where the delivery in law takes place and thus the risks in the goods pass to the buyer at this point, and the latter is where the goods will be actually handed over to the buyer, which is covered by the freight already paid by the seller. Accordingly, if the seller incurs costs under its contract of carriage related to unloading at the specified point at the port of destination, the seller is not entitled to recover such costs from the buyer unless otherwise agreed between the parties. The basic duties of the parties are set out as follows: 1.33

[page 39] The Seller

The Buyer

A1 Must provide the goods and documents or B1 Must pay the price of the contract. equivalent electronic records or procedures in A document may also be an equivalent conformity with the contract of sale. electronic record or procedure. A2 Where applicable, clear the goods for export at its own risk and expense. A3 (i) Contract or procure a contract (in case

B2 Where applicable, clear the goods for import and transit through any country at its own risk and expense.

of string sales) to carry the goods from the agreed point or place of delivery (where risk passes) to the agreed point or place of destination. The contract of carriage shall be at the seller’s expense, made on the usual terms, via the usual route and using a vessel suitable to carry the goods concerned. (ii) The seller must insure the goods with a reputable insurer for the minimum cover provided by Clauses (C) of the Institute Cargo Clauses (LMA/IUA) or any similar clauses. The insurance contract so obtained must entitle the buyer or any other person having an insurable interest in the goods to claim directly from the insurer. The buyer may at its own expense request the seller to obtain additional procurable insurance cover as provided by Clauses (A) or (B) of the Institute Cargo Clauses (LMA/IUA) or any similar clauses and/or cover complying with the Institute War Clauses and/or Institute Strikes Clauses (LMA/IUA) or any similar clauses.

B3 Is not obliged to the seller to make a contract of carriage or a contract of insurance, but is obliged to provide the seller, upon request, with the necessary information for obtaining additional insurance (if applicable).

The insurance, which shall cover the goods from the agreed point of delivery to at least the named port of destination, shall cover at a minimum the contract price plus 10% (ie, 110%) and shall be in the currency of the contract. The buyer is obliged to provide the necessary information to the seller when the buyer requests additional coverage, and the seller is obliged to provide the buyer with information to enable the buyer to procure additional insurance only at the buyer’s request, risk and expense (if any). A4 Deliver goods by placing them on board the vessel or by procuring the goods so delivered. In either case, the goods must be delivered on the agreed date or within the agreed period in the manner customary at the port of delivery.

B4 Take delivery of the goods at the place of delivery as envisaged in A4 and receive the goods from the carrier as agreed at the named place of destination.

[page 40]

B5 Is responsible for risks after delivery and for additional risks arising from its failure to A5 Risk passes at delivery, or passes to the give sufficient notice on the time for shipping buyer who causes delay in delivery at the the goods, and/or place of destination or the agreed time and place of delivery, as the case point of receiving goods (if applicable) from may be. the agreed date or the expiry of the agreed period for delivery, provided that the goods are clearly identified as the contract goods. B6 Must pay: A6 Must pay: all costs relating to the goods before delivery except for those additional costs arising from the delay in delivery caused by the buyer; freight and all costs for carrying the goods to the named destination, in particular the costs of loading and unloading that are under the seller’s account under the contract of carriage; insurance costs payable by the seller under A3; and where applicable, costs for clearing export and transit through any country that are for the seller’s account under the contract of carriage. (It must be emphasised that the obligation to bear the costs for transit through any country must be interpreted by referring to A2 and B2 in any specific contract of sale.)

all costs relating to the goods after delivery, except for those (where applicable) payable by the seller under the term; all costs relating to the goods for transit through any country except for those payable by the seller under the contract of carriage; costs for unloading the goods (including lighterage and wharfage charges), which are not for the seller’s account under the contract of carriage; additional costs arising from its failure to give sufficient notice on the time for shipping the goods, and/or place of destination or the point of receiving goods (if applicable) from the agreed date or the expiry of the agreed period for shipment, provided that the goods are clearly identified as the contract goods; where applicable, costs for clearing goods for import, as well as transit through a third country after delivery; and costs for requesting additional insurance cover.

B7 Give sufficient notice to the seller on the A7 Give the buyer sufficient notice to allow the time for shipping the goods, and/or place of buyer to take delivery. destination or the point of receiving goods (if applicable). A8 Must at its own expense provide the buyer with the usual transport document for the goods, which must be dated within the agreed period for shipment, unless agreed otherwise, and enable the buyer to claim the goods from B8 Must accept the conforming documents. the carrier or to sell the goods in transit by transferring the document to a sub-buyer or by

notification to the carrier. When such a transport document is issued in negotiable form and in several originals, a full set of originals must be presented to the buyer.

[page 41] A9 Is responsible not only for the cost of necessary checking (such as checking, measuring, weighing and counting) and mandatory pre-shipment inspection, but also for appropriately marking and packaging the goods at its own expense in conformity with the contract, unless the usual practice of a particular trade does not require the goods concerned to be packaged.

B9 Is responsible for the costs of mandatory pre-shipment inspection, except for those mandated by the export country.

In the absence of a specific requirement, it is expected that the packaging will be adequate for the means of transport made known to the seller before the conclusion of the contract. A10 Must assist the buyer timely in obtaining all necessary documents and security-related information for importing and transporting the goods at the buyer’s request, risk and expense. The seller must reimburse the buyer for the latter’s costs and expenses in rendering assistance in obtaining documents and information under B10.

B10 Must advise the seller of any securityrelated information so that the seller may comply with A10. Must reimburse the seller for all costs and expenses incurred under A10. Where applicable, at the seller’s request, risk and expense, provide to or render assistance in obtaining documents and security-related information requested by the seller for exporting and transporting the goods.

LEGAL FRAMEWORK FOR INTERNATIONAL SALE OF GOODS IN AUSTRALIA Depending on the meaning of ‘goods’, the Australian legal framework for the international sale of goods varies. Broadly, any law that 1.34

may affect an international commercial transaction may be part of the legal framework for the international sale of goods. For example, general contract law is always relevant to any contract of sale, whether domestic, interstate or international.45 Sale of goods legislation and consumer protection legislation may be relevant, depending on the subject matter involved. In addition, export and import control legislation, international banking law and intellectual property law, for example, could also be relevant in certain circumstances. In a narrower sense, the legal framework for international sale of goods in Australia includes merely the sale of goods legislation, the relevant provisions of the Competition and Consumer Act 2010 (Cth), the CISG, and the common law of contracts and commercial customs (such as Incoterms® 2010). This chapter adopts this narrow definition of the legal framework. It emphasises Incoterms® 2010 and the sale of goods legislation of Australia. The CISG can also be regarded as part of Australian law, and is examined in detail in Chapter 2. [page 42]

1.35

Bowden Brothers and Co Ltd v Robert Little (1907) 4 CLR 1364

When both the Incoterms and the sale of goods legislation apply Facts: Bowden Bros, the plaintiff and appellant, was a joint stock company registered in Queensland. It carried on businesses in Queensland and Japan, and had an office branch in Sydney. Robert Little, trading as Robert Little and Co, was the defendant and respondent in the case. He was a merchant carrying on business in Sydney. Under a contract of sale concluded on 14 June 1905, Robert Little agreed to purchase 450 t of Japanese onions from Bowden Bros. The contract of sale was based on the CIF term to Sydney. The buyer found that the onions shipped to Sydney were unmerchantable and refused to accept and pay for them. The seller sued the buyer for the unpaid price of the contract. The buyer argued that the contract meant that the seller was responsible for delivering the onions in Sydney. The seller contended that the contract was intended to deliver the goods at Kobe, Japan. The seller also argued that

the condition of the onions was caused by ‘marine risks’, rather than the seller’s breach of the implied term as to merchantability under the relevant sale of goods legislation. Under the CIF term, the risk passes to the buyer when the goods have passed over the ship’s rail in loading at the named port of shipment (see, for example, A5 and B5 of the CIF term). The parties made claims and cross-claims, and the matter eventually went to the High Court. Decision: The High Court held that the seller was liable to put the onions on board the ship as agreed and to pay for the costs, freight and insurance under the CIF term. Whether the parties had agreed that the onions must be of merchantable quality at the time of delivery in Sydney, or that the onions should be merchantable only at the time of shipment at Kobe, should be determined in the circumstances involved. The mere fact that the seller knew that the onions were to be shipped to Sydney was not sufficient to establish the guarantee that the onions must be merchantable when delivered in Sydney.

This case raises the issue of contract construction when the contract incorporates an Incoterm. It also draws our attention to an uncertain area in the application of the sale of goods legislation to a contract of international sale. The sale of goods legislation in Australia provides that the goods must be merchantable and fit for the purpose for which the goods are acquired, but does not expressly provide rules for ascertaining whether the terms have been complied with in an international sale.46 This case also raises the issue of adequacy of remedy in an international sale. We may wonder whether Robert Little should have sued the carrier of the onions on the basis of the ‘unseaworthiness’ of the ship, rather than refusing to pay the price of the onions to the seller. Depending on the circumstances involved, it might be possible to argue that the carrier did not provide a seaworthy ship that was equipped adequately for carrying the onions from Japan to Sydney. However, if the seaworthiness of the ship is proven, the suitability of the onions for the intended voyage may bring the dispute back to the contract of sale. This is what happened in Westcoast Food Brokers Ltd v The Hoyanger and Westfallarsen & Co A/S [1979] 2 Lloyd’s Rep 79, where the court decided that, on the balance of probabilities, the over-ripeness of the apples at the time of shipment caused the damage to the apples after the 48-day voyage. The court found that the condition of the apples in this case was not suitable for the contemplated 1.36

[page 43] voyage. In such cases, the parties would have to go back to the contract of sale to see what the contract said about the condition of the goods before shipment.

INTERNATIONAL SALE OF GOODS AND GENERAL CONTRACT LAW General contract law is the basis of the sale of goods legislation in Australia and most common law jurisdictions, in particular the United Kingdom, Hong Kong, Canada and New Zealand. In fact, the legislation contains a modified version of the rules of general contract law. Although in theory it is possible to enter into a contract for international sale merely on the basis of common law, most contracts of international sale would fall under the regime of either the domestic sale of goods legislation or of the CISG. We need to examine general contract law briefly before investigating the relationships between contracts of international sale and sale of goods legislation in Australia. 1.37

An international sale of goods is usually effected by a contract of sale. The contract can either be in writing or in oral form. However, although an oral contract is enforceable under general law, the CISG and the sale of goods legislation in most Australian states and territories, an oral contract is not enforceable under the sale of goods legislation in Western Australia (Sale of Goods Act 1895 (WA) s 4) and Tasmania (Sale of Goods Act 1896 (Tas) s 9), if the value of the sale exceeds $20, unless indorsed by evidence of the buyer’s acceptance. The requirement for a written contract can be overridden when the CISG applies to international or interstate trade in these jurisdictions, because Australia did not make a reservation against formality of contract when joining the CISG. 1.38

1.39

In conclusion, in Australia the rules of general contract law apply

to any contract of international sale, to the extent that no inconsistency arises between those rules and the provisions of the CISG, or any other convention applicable in the circumstances concerned. In Perry Engineering Pty Ltd (Receiver and Manager appt’d) v Bernold AG,47 the plaintiff insisted that the Sale of Goods Act 1895 (SA) applied to the dispute. Although the court took the view that it was more appropriate to apply the CISG, all the court could do in the case was to refuse to assess the damage as requested by the plaintiff, because the plaintiff had not pleaded its claim under the provisions of the CISG and the claim, as seen by the court, was based on the provisions of the CISG. This case reflects the delicate balance between the domestic sales law and the CISG. While the application of the CISG may not be compulsory due to a lack of enforcement mechanism in the CISG itself, the parties run the risk of losing legal protection of their rights that may otherwise be available under the CISG. Actually, the same can be said about the contract law of all countries, because under the relevant international law a country is obliged to give a prevailing effect to the international conventions ratified by it. The parties to a contract of international sale have a wide liberty to define their rights and obligations, as well as the terms of the contract, by express intention. Parties from different countries often have to define their legal relationships by incorporating 1.40

[page 44] commercial usage and customs, such as the Incoterms, into their contract of sale. The common law and sale of goods legislation allow parties to define their rights and duties by way of contract, or to modify the effect of the provisions of the sale of goods legislation unless otherwise prohibited. (For example, certain provisions in the Goods Act 1958 (Vic) Pt IV and provisions of the Competition and Consumer Act 2010 (Cth), which deal with consumer protection, cannot be overridden by express

agreement of the parties.) The CISG also allows parties to modify or exclude most provisions of the Convention by express agreement: art 6. The Incoterms, which are prepared by the ICC, can be incorporated into contracts of international sale under the notion of freedom of contract. As a general rule, the Incoterms are given effect under general contract law. The relevant domestic sale of goods legislation and the CISG allow the incorporation of the Incoterms into a contract of sale. This characteristic of the Incoterms must be noted to avoid a misunderstanding of the status and nature of the Incoterms. Otherwise, parties to an international sale may incorrectly regard an Incoterm as compulsory, inflexible and inviolable, like a rule of law. In fact, Incoterms are standardised and uniform commercial terms, customs or usage. 1.41

INTERNATIONAL SALE OF GOODS AND THE AUSTRALIAN SALE OF GOODS LEGISLATION Uniformity of the sale of goods legislation In Australia, contracts for the sale of goods that satisfy the definition of ‘goods’ under the sale of goods legislation in each state and territory are subject to the relevant sale of goods legislation. The sale of goods legislation is largely uniform — for example, the definition of ‘goods’ is uniform in each jurisdiction — and is based on the Sale of Goods Act 1893 (UK), which has been replaced by the Sale of Goods Act 1979 (UK). In fact, the sale of goods laws of most major, common law jurisdictions originate from the English Sale of Goods Act 1893. Some uniformity can thus be seen in the domestic sale of goods laws of most major, common law jurisdictions, such as the United Kingdom, Canada, New Zealand, Hong Kong and to some extent the United States. The emphasis of our study is on the legal implications of contracts of 1.42

international sale, as opposed to practical activities involving the international sale of goods, such as how to establish business connections and how to market goods in a foreign market. The major legal issues arising from the application of the sale of goods legislation to contracts of international sale are discussed below.

Constitutional implications in Australia Constitutional implications arise from the application of state sale of goods legislation to the international sale of goods. The following three questions are essential: 1. Who has power to regulate the international sale of goods in Australia? 2. Can state sale of goods legislation apply to a contract for the international sale of goods? 3. How does state sale of goods legislation operate in an international sale? 1.43

[page 45] In answer to the first question, the power to regulate the international sale of goods lies with the federal government. However, this is a concurrent power, which can also be exercised by a state or territorial parliament, subject to the Australian Constitution s 109. The powers of the federal and state governments are divided mainly, though not exclusively, on the basis of the Constitution s 51. Many of the heads of power in s 51 are concurrent, and the Constitution s 109 gives prevailing force to the federal legislation in cases of inconsistency between the federal and state laws. In theory, the federal parliament has power within the territory of the Commonwealth of Australia to regulate: interstate and international trade under s 51(i); interstate and international banking under s 51(xiii);

insurance, other than mere state insurance, under s 51(xiv); bills of exchange and promissory notes under s 51(xvi); and the operation (not the establishment)48 of financial or trading corporations and foreign companies under s 51(xx). It also has power to give effect to international treaties under the s 51(xxix) external power. Nonetheless, the sale of goods is one of the areas where the state parliaments have traditionally exercised their legislative power.49 Therefore, as far as the international sale of goods is concerned, both the federal and state parliaments can regulate the matter, but the federal legislation prevails wherever inconsistency arises. The discussion in the preceding paragraph also answers the second question raised above. The sale of goods legislation may apply to any contract for the international sale of goods, provided that it is not inconsistent with the relevant federal legislation. Indeed, in circumstances where the CISG applies, the provisions of the sale of goods legislation may be excluded if they are inconsistent with the provisions of the Convention.50 This leads us to the third question: how does state sale of goods legislation operate in an international sale? The sale of goods legislation in each state and territory has extra-territorial application. It applies to any contract for the sale of goods that is subject to the law of the state and territory. There are two main conditions for the application of a state’s sale of goods legislation to a contract for the international sale of goods: 1. the subject matter consists of ‘goods’ as defined in the sale of goods legislation;51 and 1.44

[page 46] 2.

the contract is subject to the state law on any of the grounds that make the state law applicable in the circumstances involved; for

example, by express intention of the parties, or through any of the conflicts rules adopted in the relevant jurisdiction. Therefore, state or territorial sale of goods legislation may apply to any contract for the international sale of goods once the above two conditions are satisfied, subject to any express restrictions (if any) of the federal and state law. The mere fact that the CISG applies to a particular contract of international sale does not automatically exclude the operation of the relevant state sale of goods legislation. The state and territorial law is excluded from applying to such a contract only in the case of inconsistency between the Convention and the state law; or, alternatively, by the express intention of the parties to the contract concerned (if such an exclusion is allowed). Constitutional implications may also arise where the power to regulate trade is divided between the central government and state governments in a federal country. The power to regulate trade can be exercised in different ways, and may interfere with different areas of the economy. For example, in Bell Bros Pty Ltd v Rathbone (1963) 109 CLR 225, the appellants appealed to the High Court of Australia against a conviction under the state Transport Co-ordination Act 1933–61 (WA). The appellant was charged for a breach of the said Act for carrying a cargo of timber without licence. The appellant’s vehicle was carrying the timber to Fremantle, a seaport in Western Australia, for shipment to Melbourne in Victoria. If the carriage by land is regarded as part of a continuous journey from a place in Western Australia to a place in Victoria, the carriage is subject to the Australian Constitution s 92 because it involves interstate trade. Accordingly, the prohibition under the said state law would be invalid because of its inconsistency with s 92. In their separate judgments, seven judges of the High Court all held that the appellant was protected by s 92 because the carriage by land was part of the interstate trade. This case suggests that, in Australia or another country with a similar constitutional arrangement, an act that is part of an international trading activity is not only subject to the relevant state law, but also protected by 1.45

the relevant provisions of the federal constitution. The general conclusion is that any state legislation that prohibits or restricts interstate or international trade will probably be held to be invalid under the relevant federal constitution.52 On this point, we can see that the arrangement for implementing the CISG in Australia is more an arrangement of convenience, rather than a constitutional requirement.

Formation of contract under the sale of goods legislation There is no formality requirement for a contract of sale in Australia. Generally, a contract of sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be implied from the conduct of the parties as the case may be. If a contract is to be enforced in Australia under the sale of goods legislation (as opposed to the CISG), the common law rules of 1.46

[page 47] contract, such as the rules on offer and acceptance, must be followed. In general terms, any communication between parties must constitute an offer or acceptance in law before it can be enforced by a court of law. Because of the foreign parties involved, the effect of any offer and acceptance can only be decided under whatever law is regarded as applicable by the court dealing with the issues of validity. Conflict of laws is thus an important issue in these circumstances. Hoeper v Neldner [1931] SASR 173 demonstrates the relationship between the validity of an international sale contract and the governing law in the context of international commerce. The major point is that the validity of a contract and of an offer or acceptance is affected by the law applicable in the circumstances concerned. This case may be compared with a Chinese case involving similar problems. In China-Schindler Co Ltd 1.47

North Division v Fung Hing Co Ltd (1991) 6 China Law and Practice 1, the parties signed an order confirmation for stainless steel plates on 14 December 1988. According to the confirmation, the seller, Fung Hing Co Ltd, would supply 600 stainless steel plates to the buyer, Schindler. The seller began to perform the contract in the same month the confirmation was signed. On 19 January 1989, the buyer wrote to the seller, demanding a reduction of the number of MS-04–type plates ordered from 400 to 200, and requesting a new quote. The seller then sent a new order-confirmation form at a lower price for 200 plates to the buyer on the same day, but the buyer did not confirm this order confirmation. The buyer subsequently refused to perform the original order confirmation, arguing that there was no binding contract because the new order-confirmation form quoting a lower price had not been signed. The buyer argued that the new order-confirmation form suggested that the parties were at the stage of negotiating a contract. The seller sued the buyer for breach of contract on the ground that the original order-confirmation form was signed by both parties and was a binding contract. The Beijing Intermediate Court found that the first order confirmation was a duly signed contract, and that the new order confirmation was not signed by the buyer and therefore did not constitute a valid contract. This case was decided under the 1985 Foreign Economic Contract of China, which was replaced by the Code of Contract Law (or Contract Law) of China in March 1999. The Code of Contract Law came into operation on 1 October 1999. Unlike the 1985 Foreign Economic Contract Law, the written form of contract is no longer compulsory under the Code. The change has reduced the differences between Chinese contract law, the CISG and the contract laws of common law countries. However, it must be emphasised that even in 2012 the formality of the written contract is still an issue about which a foreign party must be very careful. First, China made a reservation against oral contracts when joining the CISG and, even though the question of whether China will maintain this reservation was internally reviewed by the Treaty Department of the Ministry of Commerce in 2011,53 this

reservation is still valid at least as at January 2012. Second, the present Code of Contract Law (PRC) arts 32 and 33 state that a contract is not made until signed or sealed by the parties if they decide to make a written contract by way of a standard contract or written confirmation order. These provisions suggest that in certain cases, written contracts still prevail in China. [page 48] It is interesting to note that, in Germany, ‘silence after receiving a commercial letter of confirmation in many circumstances will have legal effect as an acceptance’.54 In this context, a letter of confirmation is the ‘evidence of the formation and the content of the contract’.55 Although it can be argued that the order forms and order-confirmation forms in the above cases were not the same as ‘letters of confirmation’, it is possible that German law may not treat a lack of written formality in the same way as Chinese law. Thus, the above Chinese case might have had a different result if it had been dealt with under German law. This suggests that the validity of a contract or the formality of a contract must be examined in the context of a particular law. 1.48

Passing of property under the sale of goods legislation Rules for the passing of property in goods are important in any contract of international sale. As we have seen, the Incoterms do not deal with passing of property at all. Nor does the CISG. This territory is reserved for the relevant domestic law. Under the sale of goods legislation of the Australian states and territories, property in goods passes to the buyer pursuant to either the express or implied intention of the parties.56 An express intention is seen when the parties include provisions in the contract of sale, explicitly stating when and how the property in goods passes to the buyer. Under the sale of goods legislation, the payment for 1.49

the price of the goods may be regarded as an indicator of the passing of property if the contracting parties so intend: Matthew Short & Associates Pty Ltd v Riviera Marine (International) Pty Ltd [2001] NSWCA 281. 1.50

Dennant v Skinner and Collom [1948] 2 KB 164

Intention to be ascertained in the circumstances involved Facts: The seller sold a car at auction to the buyer, who signed a document to the effect that the title to the car was not to pass until full payment was made. The buyer gave a false name and address, as well as a bad cheque, which was subsequently dishonoured. He later sold the car to an innocent third party. The seller sought to recover the car from the third party. Decision: The court held that in this case both property and risk passed to the buyer at the fall of the hammer at the auction sale. This means that the property passed to the buyer when the parties signed the document in question. In addition, it can be argued that the original seller’s right in this case might have been defeated by the innocent third party’s right.

An implied intention is seen when, reading the contract as a whole, the circumstances of the contract suggest the parties’ intention as to when and how to pass the property in goods. 1.51

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1.52

Carlos Federspiel & Co SA v Charles Twigg & Co Ltd [1957] 1 Lloyd’s Rep 240

Implied intention to pass property on shipment Facts: Carlos Federspiel, the plaintiff buyer, purchased a quantity of bicycles from Charles Twigg under the FOB term. The buyer paid a sum of money under the contract of sale. The seller went into liquidation before delivering the bicycles according to the contract. The buyer

argued that property in the bicycles had passed to it, but the receiver argued that, under the FOB term, property in the bicycles was intended to pass upon shipment. Decision: The court held that the FOB contract suggested that the parties intended the property to pass to the buyer upon shipment. In addition, there had been no indication of appropriation in relation to the bicycles in question.

The sale of goods legislation in the Australian states and territories sets out specific rules for ascertaining the intention of the parties to pass property in goods.57 These rules are outlined in the following paragraphs. The time and manner in which the property in goods passes should be ascertained according to the rules set out in the sale of goods legislation, unless the parties agree otherwise in the contract of sale. In an ‘unconditional contract’ (a contract that does not contain conditions for delivery of goods, passing of property, or for the validity of the contract) that does not reserve the ‘right of disposal’ (the seller’s right under the sale of goods legislation to prohibit the buyer from selling or disposing of the goods concerned before full payment on the goods is made), for the sale of ‘specific goods’ (goods that are identified, ascertained or distinguished from other similar goods at the time of the conclusion of the contract), which are in a ‘deliverable state’ (ready for the buyer to take over as agreed in a contract of sale), the property in the goods passes to the buyer at the time of the conclusion of the contract — regardless of the time for payment and delivery. In such a case, the buyer can be the legal owner of the goods even if they are in possession of the seller. 1.53

In a contract for the sale of specific goods, if the seller is required under the contract to do something to put the goods into a deliverable state (for example, to put a machine onto a railway truck, as was the case in Underwood Ltd v Burgh Castle Brick and Cement Syndicate [1922] 1 KB 343),58 the property in the goods does not pass until the thing is done and the buyer has notice of it. 1.54

In a contract for the sale of specific goods in a deliverable state, if the seller is required under the contract of sale to do something (for example, to weigh, measure or test), or to ascertain the price of the goods, 1.55

the property does not pass until the required thing is done and the buyer has notice of it. For example, in Nanka Bruce [page 50] v Commonwealth Trust Ltd [1926] AC 77, the seller and buyer agreed that the buyer was to buy cocoa from the seller at a fixed price. The buyer was to weigh the cocoa at the time of resale, and to pay the total price to the seller according to the buyer’s calculation of the quantity of the cocoa. The parties later disagreed as to who was the owner of the unsold cocoa that was in the buyer’s possession. The court held that the relevant provision of the Sale of Goods Act 1893 (UK) (equivalent to, for example, the Sale of Goods Act 1923 (NSW) s 23(3)) required the seller to do something to ascertain the price before the property passed. But this provision did not apply to the present case, where the buyer was bound to do something to ascertain the total price of the goods. The court decided that the property in the cocoa passed to the buyer according to the parties’ intention; that is, at the conclusion of the contract of sale. If a contract is based on delivery ‘on approval’ (which means that a contract is based on the approval of the ‘buyer’ — the recipient of the goods — to accept the goods delivered) or ‘sale or return’ (which, in brief, means that the existence of a contract of sale is based on an understanding that the recipient of the goods may either accept the goods delivered by keeping them, or refuse the goods delivered by returning them within a fixed or reasonable time after delivery), the property in the goods passes to the buyer in three ways: 1. When he or she accepts the goods expressly or implicitly by his or her conduct — for example, by exercising the right of an owner over the goods concerned: see Kirkham v Attenborough [1897] 1 QB 201.59 2. When he or she fails to inform the seller of his or her rejection within the fixed time for return of the goods: see Poole v Smith’s 1.56

3.

Car [1962] 1 WLR 744.60 However, the rule does not apply to consumer transactions under certain circumstances where the Competition and Consumer Act 2010 (Cth) prohibits the use of particular sales and marketing techniques based on delivery of unsolicited goods: Competition and Consumer Act 2010 Sch 2 Ch 3.61 When he or she fails to reject the goods delivered within a reasonable period of time, even though no time for returning the goods is fixed. [page 51]

In a contract for the sale of ‘unascertained goods’ (identical goods that can be replaced by each other for the purpose of meeting a contract description, such as wheat or wool of a particular brand, cars of a particular model, or oil of a particular specification) or ‘future goods’ (which are to be made or to come into existence in the future) by description, the property in the goods passes to the buyer when the unascertained or future goods are ‘appropriated’ (which in general means that the goods have been identified, marked and delivered irrevocably to the seller), pursuant to the contract with the assent of the parties: see Re Wait [1927] 1 Ch 606.62 In Matthew Short & Associates Pty Ltd v Riviera Marine (International) Pty Ltd [2001] NSWCA 281, the New South Wales Court of Appeal held that the goods in dispute, a motor cruiser, were future goods, and that property in the goods should pass to the buyer as the parties intended, which was the time when the cruiser was loaded onto the freighter for shipment. 1.57

These rules can be applied to an international sale of goods when the sale is subject to the law of an Australian state or territory, and no inconsistency arises between the provisions of the CISG and the relevant state or territory law. The rules can be modified or varied by express intention of the parties. 1.58

This is evidenced by the use of the Incoterms, which are often an essential part of a contract for the international sale of goods. The FOB or CIF terms are those most commonly used in international sales. If CIF is adopted, the seller’s duties are examined in the context of the term. CIF cannot replace the rules for the passing of property because it does not deal with the issue. But the seller’s liabilities (for example, the liability to obtain an export licence or authorisation under A2, the liability to arrange transportation and marine insurance under A3, and the liability to deliver the goods within the agreed time to the agreed place) may be regarded as the things that must be done by the seller before the property in the goods passes to the buyer under the sale of goods legislation, unless the parties expressly agree otherwise (by, for example, passing the property at the time of payment).

Transfer of risks under the sale of goods legislation The transfer of the risk in the goods sold is an important issue in international sales. Risk in an international sale is higher than in a domestic sale, because the sale involves parties from different countries, using various means of transportation. In addition, the sale is also exposed to many natural and political risks, such as political and civil unrest, approval for export, import or transit through a third country, and certain natural disasters, which are not major concerns in a domestic sale. It is necessary to define clearly in any contract of sale when and how the risk in the goods passes from the seller to the buyer. 1.59

[page 52] The sale of goods legislation in the Australian states and territories deals with the passing of risk under two basic principles: unless agreed otherwise, risk and property prima facie pass 1.60

together;63 and the party that causes delay in delivery is liable for the costs, losses or damages flowing from the delay:64 see Demby Hamilton Ltd v Barden [1949] WN 73.65 Under the first principle, the express intention of the parties for the passing of property in the goods, and the rules for ascertaining the intention of the parties for the passing of property, are relevant in determining when and how the risk in the goods has been, or is to be, transferred from the seller to the buyer. Delivery of the goods is not crucial under this principle. In circumstances where the parties’ intention is evident, the property and risk in the goods lie with the buyer, even though the goods have not been delivered. Otherwise, the property and risk pass to the buyer at the time of delivery as set out in most of the rules mentioned in 1.45–1.57. The first principle is consistent with most of the Incoterms, which provide that the risk in goods passes at the time of delivery as agreed in the contract of sale. The second principle deals with circumstances where the delivery did not take place pursuant to the contract, whereby the property and risk may or may not have passed to the buyer. In such circumstances, the party who normally bears the risk in the goods should not suffer from the fault of the other party in failing to make, or take, delivery of the goods as agreed. Therefore, the party causing delay in delivery is liable for the risk, regardless of who should otherwise bear the risk before delivery. This principle is also consistent with the Incoterms: see B5 of each term. Passing of risk is subject to specific provisions under the CISG. There should be no conflict between the sale of goods legislation and the Convention in relation to the passing of risk in goods, because the provisions of the Convention will prevail over the principles of the sale of goods legislation in cases of inconsistency. The provisions of the Convention on the passing of risk are sufficient to render the application of the sale of goods legislation unnecessary in most circumstances. 1.61

1.62

When a contract of international sale has incorporated an

Incoterm, the rules for the passing of risk in the sale of goods legislation may be overridden by the intention of the parties. The passing of risk in such circumstances is determined by [page 53] the detailed duties of the parties under the chosen term. The rules for the passing of risk under the sale of goods legislation are relevant to a contract of international sale in circumstances where the parties do not incorporate any Incoterm into the contract, or where the parties have modified the selected term to allow the operation of the sale of goods legislation.

Delivery of goods under the sale of goods legislation The sale of goods legislation sets out a number of detailed rules for delivery.66 These are listed below. 1.63

General rule The place, time and manner of delivery should be determined by the express or implied intention of the parties. This general rule allows the operation of the Incoterm incorporated into a contract of sale. ‘Delivery’ can be either physical or constructive. This was accepted by Isaacs J in The Australasian United Steam Navigation Co Ltd v Hiskens (1914) 18 CLR 646 at 665, in the context of delivery between a carrier and a consignee; and by the majority of the High Court in Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1987) 163 CLR 236, in the context of a sale by a buyer in possession. 1.64

Presumed place of delivery In the absence of an express or implied intention, the place of delivery should be, in order of priority: 1.65

1. 2. 3.

the place where, to the knowledge of the parties at the time of the contract, the specific goods are located; the seller’s place of business; or the seller’s place of residence.

Time for delivery The delivery should be made on a fixed day; or, in the absence of a fixed day, within a reasonable time. 1.66

Delivery while the goods are in a third party’s possession When the goods are in a third party’s possession, delivery is not effected until the third party acknowledges to the buyer the buyer’s title to the goods concerned. Incoterms® 2010 may suggest different rules where delivery takes place as agreed, and the legal implication of the third party’s possession of the goods can only be read in the light of the agreement between the parties. 1.67

Incidental costs of delivery The seller bears the incidental costs and expenses of putting the goods into a deliverable state unless the parties agree otherwise. 1.68

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Delivery of wrong quantity Goods must be delivered in a precise quantity, subject to the de minimis rule,67 as described in a contract. The buyer has an option, subject to the de minimis rule, to accept or refuse to accept, wholly or partially, as the case may be, goods delivered in the wrong quantity. Incoterms® 2010 does not deal with this issue in such detail. 1.69

Instalment deliveries 1.70

Instalment deliveries are allowed only by the agreement of the

parties. Whether or not a breach of the terms of an instalment amounts to a breach of the whole contract must be determined in the context of the whole contract. In Picturesque Atlas Co Ltd v Searle (1892) 18 VLR 633, the plaintiffs, Picturesque Atlas, entered into a contract with the defendant, under which the plaintiffs were to supply a certain publication consisting of several parts. The plaintiffs undertook to deliver the series as soon as possible after its publication. The contract also provided that nondelivery of the publication at any specified date should not release the buyer from his obligation to accept the publication. The first part was delivered and accepted. The second part was published in March 1887 and another part (up to No 20) was published in December 1887. The plaintiffs put the two parts together and made a delivery in April 1888, but the buyer refused to accept the delivery. The rest of the series was published in December 1888 and November 1889 respectively. The plaintiffs then delivered all parts in March 1890, but the delivery was refused. The plaintiffs sued the defendant for the price of the remaining parts. Whether the time of delivery was reasonable was the central concern. The court held that the plaintiffs did not deliver the parts of the publication within a reasonable time and thus their claim failed.

Seller’s duty to make an adequate contract of carriage with a carrier Unless specified otherwise in a contract of sale, the seller is liable under the sale of goods legislation to make an adequate contract of carriage with a carrier when delivering the goods to the carrier pursuant to the contract. The risk in the goods does not pass to the buyer if the seller fails to comply with this requirement.68 1.71

Seller’s duty to notify the buyer of the goods’ readiness for insurance Unless otherwise specified by the parties (for example, by a CIF or FOB term in the contract of sale), the seller is obliged to inform the 1.72

buyer of the shipment of the goods by sea to enable the buyer to insure the goods against marine risks. The risk in the goods does not pass if the seller fails to give such notice. This obligation can be substantially modified in any international sale, where an Incoterm is incorporated into the contract of sale. [page 55] In Law & Bonar Ltd v British American Tobacco Co Ltd [1916] 2 KB 605, the parties entered into a contract for the sale of hessian under the CIF term in 1914. The seller notified the buyer under the Sale of Goods Act 1893 (UK) s 32 (the equivalent of, for example, the Sale of Goods Act 1923 (NSW) s 35) that the insurance policy taken under the CIF contract did not cover the risk of war. However, the buyer did not insure the goods against the war risk. World War I broke out and the goods were lost as a result of the war. The question was whether the seller had performed his duties under s 32. The court held that s 32 did not apply to a contract based on a CIF term, because the CIF term set out the duties of the parties in relation to insurance. In addition, s 32 did not impose any extra duty upon the seller to make sure that the buyer insured the goods against the risk of war. In Wimble, Sons & Co v Rosenberg [1913] 3 KB 743, the parties agreed to sell 200 bags of rice FOB to Antwerp. The buyers named a vessel for the carriage of the goods. The buyers did not request the particulars of the shipment and did not insure the goods. Nor did the seller inform the buyers of the need for insurance under the English Sale of Goods Act 1893 s 32 (equivalent, for example, to the Sale of Goods Act 1923 (NSW) s 35). The vessel was stranded the day after it set out, resulting in a total loss of the rice on board. The buyers relied on s 32 to argue that the sellers were liable for the loss. The court held that the purpose of s 32 was to enable the buyers to insure the goods against marine risks. There was no excuse in the present case for the buyers’ failure to insure the goods against marine risks, because they provided the vessel for the

carriage of the goods. The buyers were able to insure the risk without the assistance of the seller, had they intended to do so.

Acceptance of delivery The buyer may accept goods by express statement, or express or implicit conduct of acceptance. An act of acceptance can be established when the buyer exercises the right of an owner over the goods in question, or when the buyer fails to reject the goods within a reasonable time after delivery. Acceptance has legal implications under the sale of goods legislation, which are often associated with the performance of contract and the passing of property and risk. This rule may be inconsistent with certain provisions of the CISG, which allow the breaching party to cure defects in the goods regardless of the effect of acceptance. Incoterms® 2010 does not define the meaning and legal effect of ‘acceptance’. 1.73

Buyer’s duty in relation to the rejected goods Unless specified otherwise in a contract of sale, a buyer is not obliged to return the rejected goods after he or she has effectively rejected them. But the buyer has a common law duty as a bailee of the goods to mitigate any loss that may occur to the goods. The CISG sets out more detailed rules for the preservation of the rejected goods. This issue is not dealt with in Incoterms® 2010. 1.74

Application of delivery rules under sale of goods legislation The above rules for delivery may apply to a contract for the international sale of goods on their own, if the CISG does not apply. They may also apply in conjunction with the CISG, if the provisions of the Convention are not sufficient to deal with the issues involved. The Convention prevails only in the case of inconsistency between 1.75

[page 56]

the Convention and the relevant rules of the sale of goods legislation. It must also be pointed out that the above delivery rules can be overridden or restrained by the incorporation of Incoterms® 2010, which provide specific rules of delivery in most circumstances covered by the rules.

Conformity of the goods under sale of goods legislation In any international sale, conformity of the goods with the contract description is always a crucial issue. Sale of goods legislation sets out specific rules to ensure that implied terms as to quality, fitness and conformity of the goods are complied with, and that the goods sold are free from legal claims of another person. These rules can be summarised as follows.69 1.76

Implied condition that the seller has title to sell Unless the parties expressly or implicitly agree otherwise, the seller has an obligation to guarantee that the goods are free from legal claims by any other parties, that the buyer should enjoy quiet possession of the goods, and that the goods are not subject to any charge or encumbrance unknown to the buyer at the time of the contract: see Rowland v Divall [1923] 2 KB 500 and Niblett Ltd v Confectioners’ Materials Co Ltd [1921] 3 KB 387.70 This constitutes an implied condition of the contract.71 1.77

Implied condition that goods conform with the contract description In a contract of ‘sale by description’ (a contract of sale entered into on the basis of a description of the goods, as opposed to a sale by sample or an auction sale), the seller has an implied duty (implied in the sale of goods legislation) to provide goods which conform with the contract description: see Elder Smith Goldsbrough Mort Ltd v McBridge Palmer [1976] 2 NSWLR 631.72 This requirement may extend to the express term of the contract that goods must be manufactured according to the 1.78

relevant statutory requirement or production standard in the importing country: Ginza Pte [page 57] Ltd v Vista Corporation Pty Ltd [2003] WASC 11.73 The buyer has the right to reject non-conforming goods despite the fact that the goods delivered are the commercial equivalent of contracted goods: see Samsung Hong Kong Ltd v Keen Time Trading Ltd [1988] 2 HKLRD 341. The buyer is also entitled to reject non-conforming goods, even though the goods are merchantable and might have been of a better quality and fit for the purpose for which the contract of sale was made: see Arcos v EA Ronaasen & Son [1933] AC 470. The rules on conformity with description appear to be too rigid to meet commercial flexibility, and may be overridden by the relevant provisions of the CISG, if the Convention applies. However, it must be pointed out that contractual description may be modified by agreement of the parties. In Hyosung America Inc and Hyosung America Inc as Assignee of Orkid Tex Inc v Sumagh Textile Co Ltd,74 the contract expressly stated that the fabric sold should contain 65 per cent rayon and 35 per cent wool; however, the buyer knew that the fabric supplied by the seller actually contained less than 30 per cent wool and raised no objection to this. The court regarded this as acquiescence, and held that this acquiescence also bound the assignee of the buyer’s right. Consequently, when the sub-buyer made a claim concerning the quality of the fabric, the court held that the assignee had to pay because of the assumed acceptance on its part of the alleged non-conformity.

Implied condition that goods are merchantable In a sale by description, the seller has an implied duty to guarantee that the goods are merchantable, unless the buyer was aware, or ought to have been aware, of the defect affecting merchantability of the goods at 1.79

the time of the contract or the time of examining the goods. Merchantability is determined in the context of the sale, taking into account the nature of the goods, their price, their marketability at the contract price, the knowledge of the parties and the suitability of the goods for any practical purpose.75 The seller is liable if the goods are unmerchantable due to a latent defect, but is not liable if the unmerchantability was caused by the fault of the buyer.76 [page 58]

Implied condition that goods are fit for the purpose for which they are acquired In a contract of sale, whether by description or by sample, where the buyer expressly or implicitly makes the purpose or purposes for which the goods are acquired known to the seller and relies on the seller’s skill and judgment in entering into the contract of sale, the goods sold must be fit for the purpose or purposes stated by the buyer, unless the seller does not deal with goods of the same nature in his or her usual course of business. In Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441, the buyers, Ashington Piggeries, contracted with Christopher Hill to supply mink food known as ‘King Size’. The buyers provided the formula for ‘King Size’ to the sellers, who proposed to replace one ingredient, fish meal, with herring meal, for economic reasons. The sellers were in the business of supplying animal food, but they had not prepared mink food before. The sellers contracted with Norsildmel, a Norwegian firm, to supply herring meal. The mink food supplied by Hill killed Ashington’s minks, because the herring meal contained the toxic chemical DMNA, which was later discovered to have caused liver disease in the minks and to be toxic to other animals. Hill sued Ashington for the price of the mink food supplied and Ashington sued Hill for the loss of the minks. The court held that the sellers breached the implied conditions as to fitness 1.80

for purpose, but did not breach the implied terms as to conformity with description. In Simms Jones Ltd v Protochem Trading NZ Ltd [1993] 3 NZLR 369, Simms Jones was in the business of manufacturing and selling a cleaner called ‘Chemico’ in New Zealand markets. It intended to develop a liquid cleaner to compete with Jif. The goodwill of Chemico was owned by the County Chemical Company of England (CCC), which produced a formula for developing the new cleaner. British Petroleum (BP) understood the needs of Simms Jones and supplied the company with an allegedly suitable detergent called ‘Gardilene SJ’. Simms Jones obtained approval from CCC for the use of the detergent. The product was unsuccessful, because calcium carbonate, an ingredient of the formula, formed a dense and solid material in a large number of bottles, rendering the cleaner unusable. Simms Jones sued BP for breach of the implied terms. The court held that it was not yet sufficiently established that the Sale of Goods Act 1908 (NZ) s 15, the sale by sample provision, had been breached. However, the court found that BP had breached the implied term as to merchantable quality and fitness for purpose under s 16.77

Implied condition that goods conform with the sample In a sale by sample, in which a contract of sale is entered into on the basis of a sample shown before the conclusion of the contract, the seller has an implied duty to provide goods that are the same as the sample. In Thorne v Borthwick (1956) 56 SR (NSW) 81, there was a contract for the sale of 50 drums of neat’s-foot oil. A sample of the oil was shown to the buyer during negotiation, prior to the conclusion of the contract, but the written contract made no 1.81

[page 59] reference to the sample. The buyer refused to take delivery on the ground

that the goods did not correspond with the sample. The court held that the mere fact that a sample was shown by the seller to the buyer during the course of negotiation leading up to a sale did not necessarily make the contract a sale by sample. Compare that decision with Ship Agencies Australia Pty Ltd v Fremantle Fishermen’s Co-Operative Society Ltd (1991) 8 SR (WA) 109, in which Fremantle Fishermen’s Co-Operative was the buyer of damaged fishing bait. Ship Agencies was the seller, acting as an agent for a Japanese firm, Tairyo Enterprises, in Fremantle. Tairyo Enterprises delivered three containers of badly damaged fishing bait to Ship Agencies. One of them was not saleable at a discounted price. Ship Agencies made insurance claims on Danzas Wills Pty Ltd on behalf of Tairyo Enterprises. Danzas Wills acted in Fremantle as the agent of the Japanese insurance company, which provided the insurance cover for the fishing bait in question. An agent of Danzas Wills presented two of the best cartons of the damaged bait to Fremantle Fishermen’s Co-Operative, which purchased the whole container on the basis of the sample. The payment was made and the goods were transferred to the name of Fremantle Fishermen’s CoOperative before the buyers inspected the whole container. Later, the buyers discovered the true state of the container and requested a refund of the money on the ground of the Sale of Goods Act 1895 (SA) s 15, alleging that the goods did not correspond with the sample. The court held that the sample was mentioned in the communications that formed the basis of the contract of sale; thus, the contract was a sale by sample, and s 15 was breached.78 This condition also implies that the buyer should have a reasonable opportunity to compare the goods and the sample. This implication affects the operation of the rules of acceptance.

Application of conformity rules under sale of goods legislation A common feature of the implied conditions mentioned above is that they can be excluded by an express agreement of the parties to a 1.82

contract of sale. This is consistent with any warranty or guarantee under the CISG. However, this feature is not consistent with the Competition and Consumer Act 2010 (Cth) or other consumer protection legislation, which does not allow the parties to exclude certain statutory liabilities by express agreement. Consumer sales legislation may be relevant to an international sale when the goods sold fall under the sphere of the Competition and Consumer Act 2010 (Cth). Incoterms® 2010 does not affect the abovementioned rules substantially, although they require the seller to provide the goods in conformity with the contract of sale. The abovementioned rules apply to any contract which has incorporated Incoterms® 2010. In the interpretation of the Incoterms, the implied terms (conditions or guarantees) under the sale of goods legislation can be relied upon to determine whether the goods conform to the contract concerned. 1.83

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Seller’s remedies under the sale of goods legislation A seller needs remedies if the buyer breaches the contract of sale. The sale of goods legislation provides remedies to a seller when the buyer fails to make full payment of the price of the goods, or when the buyer breaches other terms of the contract — for example, by failing to accept delivery as agreed, or failing to send a ship to the named port to take delivery (as required under the FOB term). The sale of goods legislation in the Australian states and territories provides major remedies to the seller, as follows.79 1.84

Seller’s right to withhold delivery An ‘unpaid seller’ (a seller who has not been fully paid) who is in possession of the goods may retain, or withhold delivery of, all or part of 1.85

the goods concerned, if the buyer becomes insolvent before making the full payment as agreed. This rule is based on the presumption that the unpaid seller has a lien (a legal right) in the goods sold.

Seller’s right to stop goods in transitu An unpaid seller has a right of stoppage in transitu (the unpaid seller may stop the continuous transmission of the goods to the buyer) if the buyer becomes insolvent, in the following circumstances: The goods are under the control of a carrier (not being an agent of the buyer) and have not been delivered or taken over by the buyer or his or her agent; nor has the carrier acknowledged the ownership of the buyer expressly to the buyer. 1.86

The goods are currently under the control of a carrier (not being an agent of the buyer) and have been rejected by the buyer. The right of stoppage in transitu can be exercised by the seller taking possession of the goods, or notifying the carrier of his or her intention of exercising the right of stoppage.

Seller’s right to sue for the unpaid price of the goods An unpaid seller may sue the buyer if the buyer has received the goods, but failed to make the payment according to the contract. On the other hand, a seller is entitled to claim the payment of the contract price in pursuance of the terms of the contract even before delivery.80 1.87

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Seller’s right to claim damages An unpaid seller may claim damages against the buyer if the buyer breaches the contract; for example, by wrongfully failing to pay the price of the goods or accept delivery: see Gebruder Metelmann GmbH v NBR (London) Ltd [1984] 1 Lloyd’s Rep 614.81 1.88

Seller’s right to claim interest or special damages A seller may claim interest or special damages under law if the buyer breaches the terms of the contract. 1.89

Application of seller’s remedies under sale of goods legislation The above remedies may operate in conjunction with all the common law remedies available to an innocent party if the contract of international sale is subject to the sale of goods legislation. (Note that not every contract for the international sale of goods involving an Australian party is subject to the CISG.) Some of them may also be supplementary to the provisions of the CISG, in circumstances where the sale of goods legislation does not conflict with the provisions of the Convention. 1.90

Incoterms® 2010 affects the operation of the abovementioned rules only to a limited degree. For example, Incoterms® 2010 makes the duty to pay the price of the contract as agreed the number one duty of the buyer (see B1 of each term). However, Incoterms® 2010 does not deal with the issue of remedies at all. This means that the abovementioned rules will coexist with any Incoterm that has been incorporated into a contract of sale. 1.91

Buyer’s remedies under the sale of goods legislation A buyer needs remedies when the seller breaches the implied terms as to quality of the goods, delivers non-conforming goods, or breaches other terms of the contract. The major remedies available under the sale of goods legislation can be summarised as follows.82 1.92

Buyer’s right to terminate a contract when the seller breaches implied conditions 1.93

If the seller breaches the implied conditions as to title, conformity

of the goods to the description or sample, merchantability of the goods or fitness of the goods for the stated purpose, the buyer is entitled to terminate the contract of sale. This right is inconsistent with several provisions of the CISG (which allows a right of self-cure to either the seller or the buyer) and will likely be overridden by the Convention if it is applicable. [page 62]

Buyer’s right to claim damages for non-delivery If the seller fails to deliver the goods as agreed, the buyer may claim damages for the losses flowing from non-delivery. This right is likely to be qualified by the provisions of the CISG in circumstances where the Convention applies, because the Convention encourages the buyer to give the seller a second chance to make delivery: the Convention art 37. 1.94

Buyer’s right to claim damages for late delivery Late delivery without justification is a breach of contract by the seller. This gives rise to a right for the buyer to claim damages against the seller. The loss or damages claimable not only includes those suffered as a result of breach by the buyer, but also those suffered by sub-buyers that are payable by the buyer. In Contigroup Companies Inc v Glencore AG,83 the court permitted the buyer to claim damages against the seller to cover the buyer’s liability to a sub-buyer arising from late delivery and delivery of non-conforming goods. 1.95

Buyer’s right to claim damages for breach of warranty by the seller If the seller breaches a contract term that constitutes a warranty, the buyer may claim damages for the breach. Similar rights are provided in the CISG: the Convention arts 74–7. 1.96

Buyer’s right to claim interest or special damages In certain circumstances, the buyer is also entitled to claim interest or special damages flowing from the seller’s breaches of the contract. 1.97

Application of buyer’s remedies under sale of goods legislation As we have seen, in certain circumstances the buyer’s right to terminate a contract of sale upon breach of any implied conditions of the contract may be curtailed by the provisions of the CISG, because one of the underlying principles of the Convention is the preservation of contract. However, if a contract of international sale is exclusively subject to the sale of goods legislation, the rules outlined above will apply. 1.98

The abovementioned rules do not have a direct relationship with Incoterms® 2010, although Incoterms® 2010 makes the buyer liable for additional costs when the buyer breaches his or her duties under the terms (see B6 of each term). These rules will coexist with any Incoterm that has been incorporated into a contract of sale. 1.99

INTERNATIONAL SALE OF GOODS AND THE CHINESE CODE OF CONTRACT LAW Applicability of the Code of Contract Law to international sales The Code of Contract Law (the Code) was promulgated in March 1999 and went into operation on 1 October 1999. The Code is a relatively comprehensive document and is meant to replace a dozen contract laws and regulations made 1.100

[page 63] previously. It applies to all types of contracts made for legitimate purposes. It also applies to contracts for the sale of goods, and is supplementary to the CISG in an international sale of goods. Many aspects of a sale may be subject to the Code, while others are subject to the CISG. In addition, a provision of the Code may apply to a sale governed by the CISG if there is no inconsistency between the Code and the CISG. In a situation where the CISG does not apply, the Code becomes the only law governing sales involving parties from mainland China and parties outside mainland China. For example, a contract of sale between a company from mainland China and a company from Hong Kong, Macau or Taiwan may be subject to the Code under the conflict of laws rules of the People’s Republic of China. Thus, the Code is important to everyone doing business with China.

Making a contract of sale under the Code Capacity to contract The capacity to contract under the Code is regulated by arts 2, 9, and 47–50. These provisions are largely supported by the relevant provisions of China’s General Principles of Civil Law (GPCL) (see arts 9–19), which regulate the capacity of a natural person, and arts 36–53, which regulate the capacity of a legal person.84 ‘Other organisations’, which can be contracting parties under the Code art 2, are not defined in the GPCL. Generally speaking, the term ‘other organisations’ may refer to non-profit organisations or government departments, which may not fully satisfy the legal requirements for a ‘legal person’ under Chinese law. The capacity to contract under the Code can be discussed from three perspectives: the capacity of a natural person; the capacity of a legal person; and the capacity of other organisations. The Code art 2 states that a contract can be made between these persons or organisations. In the light of the provisions of the Code and the GPCL discussed above, 1.101

the capacity of the three types of contracting parties can be summarised as follows. Natural persons. A natural person of 18 years of age who does not suffer any mental disability is capable of entering into a contractual relationship of his or her free will: GPCL art 11; Code art 9. This age threshold may sometimes drop to 16 years if the person lives on his or her own income: GPCL art 11. Children of 10 years of age may conclude certain contracts suitable for their age and intelligence: GPCL art 12. A similar rule underlies the common law principles of contract relating to purchase of necessaries by a minor: see, for example, Ryder v Wombwell (1868) LR 4 Ex 32 and Fawcett v Smethurst (1914) 84 LJ Ch 473. Children under 10 years of age are deemed to have no capacity to contract. The fixed threshold of 10 years of age distinguishes the Chinese law governing the capacity of a minor from the relevant common law rules, which do not impose a strict threshold of this kind. A person with limited civil capacity (that is, a person capable of understanding the nature and consequence of only some of his or her own acts) may enter into 1.102

[page 64] certain contractual relationships appropriate to his or her mental state: GPCL art 13. A contract made by such a person is normally subject to retrospective approval by the person’s legal agent or guardian, unless the contract is merely beneficial to the person or is appropriate for his or her age, intelligence and mental state: Code art 47. A natural person who is represented by an agent in the making of a contract is not liable for any act of the agent exceeding the agent’s authority, unless the act is supported by an ostensible authority that has been reasonably relied upon by a bona fide third party: Code arts 48 and 49.85 The presumption of an ostensible authority in the Code appears to be a step forward from the principles of agent and principal set out in the GPCL, although the

presumption appears to have no basis in the GPCL, which is deemed to be the foundation for all civil and commercial laws in the People’s Republic of China. For this reason, an amendment to the GPCL is only a matter of time. Meanwhile, the principles discussed in this paragraph determine whether a contract governed by the CISG has been made by persons with the capacity to contract. Legal persons. A ‘legal person’ under Chinese law is an organisation that is capable of enjoying and exercising civil rights, as well as undertaking and performing civil liabilities independently: GPCL art 36. To qualify as a legal person, an organisation must satisfy four requirements: it must be established in pursuance of the law; it must have the necessary property or funds; it must have its own name, organisation and place of business; and it must be capable of undertaking a civil liability independently: GPCL art 37. A legal person can be a company set up under the relevant law, or an organisation or society that meets these four requirements: GPCL art 50. A partnership or a joint operation constituting a new economic entity and satisfying the four requirements may also be regarded as a legal person under Chinese law: GPCL art 51. A legal person may be required to register with the relevant government authority if the law so prescribes. The capacity of a legal person to contract largely relates to its status as a ‘legal person’ under Chinese law. A legal person’s capacity to contract may be affected by the scope of its business as registered or approved by the relevant authorities. A contract for international sale may be declared void if the Chinese party does not have a so-called ‘foreign trading right’.86 A domestic contract for the sale of goods may also be declared void if the business scope of a party does not cover the goods sold in the contract, or the parties do not have capacity to perform the contract. Such reasoning may appear peculiar to a common law lawyer, but up to now the Chinese courts have still treated the approved scope of business as an issue of capacity, because engaging in a business transaction outside the approved scope of business is regarded as illegal in most circumstances. Similarly, a settlement agreement reached during the mediation 1.103

[page 65] process conducted by a court may be set aside by the court if the agreement requires a party to perform an act falling outside its scope of business.87 The rules governing contracts made by an agent, discussed above, also apply to contracts where a legal person is the principal. In addition, a legal person is liable in contract to a bona fide contracting party who has reasonably relied on an ostensible authority of the legal representative or responsible person of the legal person.88 1.104

Baoli Hotel of Yinhai v Mingyue Special Lighting Company Ltd of Inner Mongolia People’s Court, Beijing, 19941

A contract with a Chinese joint venture may be invalid if beyond the scope of the organisation’s business Facts: The plaintiff entered into a contract for the purchase of plywood from the defendant. The defendant was a joint venture between two Hong Kong companies and two innerMongolian companies, which never went into operation because of a funding problem. Certain persons from the defendant joint venture signed the contract for the sale of plywood in the name of the venture, but without having any plywood to sell. The plaintiff sued the defendant for breach of contract. Decision: The trial court and the court of appeal held the contract to be valid and ordered the defendant to pay twice the amount of the deposit to the plaintiff as a penalty for its breach. In the review process, the Provincial Supreme Court held the contract to be invalid because the defendant exceeded the scope of its business in concluding the contract in dispute, and ordered the defendant to return the deposit to the plaintiff and pay appropriate damages to the relevant parties to cover their losses.

1. Reported (in Chinese) in Institute for Practical Legal Research of the National Supreme Court, Selected Cases of the People’s Court, vol 9, Publishing House of the People’s Court,

Beijing, 1994, pp 124–30.

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Base Construction Corporation (Henan) of China Exported Commodities v Foreign Trade Development Company of Shenzhen People’s Court, Beijing, 19921

A contract with a Chinese company may be unenforceable if the supplier does not hold the necessary licence Facts: The parties entered into a contract for the purchase of a quantity of mung beans and sesame seeds. The seller’s supplier was prohibited from selling the products concerned by the local administration for industry and commerce because the supplier did not have a licence to sell the products. The contract was therefore not performed. The parties accused each other of breach of contract. Decision: The court of appeal held the contract to be unenforceable because the seller was incapable of performing its obligations under the contract, and ordered the parties to share the losses incurred.

1. Reported (in Chinese) in Institute for Practical Legal Research of the National Supreme Court, Selected Cases of the People’s Court, vol 1, Publishing House of the People’s Court, Beijing, 1992, pp 10–48.

Other organisations. The Code art 2 recognises the right of an organisation that is not a legal person to conclude a contract. This is a new development in the civil law of the People’s Republic of China. The GPCL only recognises two types of entities (or persons) who can be the subject of civil rights: natural or legal persons. For example, the GPCL art 54 defines an ‘act of civil law’ as a legitimate act of a citizen or a legal person to establish, change and terminate a civil right or obligation. The GPCL implicitly suggests that an organisation that is not a legal person is incapable of performing an ‘act of civil law’. When the Code art 2 1.106

permits ‘other organisations’ besides natural or legal persons to conclude a contract, the meaning of ‘organisation’ in this context is unclear in Chinese jurisprudence. It is possible that ‘organisation’ under the Code refers to a government organisation or any other social, political or economic organisation that enters into a commercial contract with another party. The organisation must be allowed to enjoy the relevant right and be required to undertake the relevant liability for the purpose of ensuring stability and fairness in commercial transactions. The Code art 2 suggests that a government organisation or department engaged in a commercial activity may be liable to the other contracting party,89 even though this proposition has no basis in the GPCL. Consequently, the Code provides guidance for ascertaining the legality of contracts made by organisations that are not legal persons.

Negotiation of contract ‘Negotiation of contract’ refers to the whole negotiation process leading to the conclusion of a contract. This always starts with an offer, or invitation to treat, which will be followed by acceptance or counteroffer, finally ending with a concluded contract. 1.107

[page 67] The Code arts 10–34 deal with the formalities of offer and acceptance. Generally speaking, these provisions are similar to the relevant provisions of the CISG. It must be emphasised, however, that the Code art 10 has adopted the same position as the CISG art 11, giving effect to an oral contract that may or may not be supported by written evidence. The Code art 10 states that a contract can be made between parties in writing, orally or in any other form. Under this provision, the written form is necessary only when expressly required by the relevant law or by an agreement between the parties. This represents a crucial change in Chinese contract law. China made a reservation when it ratified the CISG to deny the effect of an oral

contract. The passing of the Code means that this reservation should be amended. The recognition of oral contracts increases flexibility in commercial transactions and makes the use of oral evidence possible in a dispute arising from a contract in the People’s Republic of China. This change also reduces the differences between common law contract rules, such as those practised in Australia and Hong Kong, and the contract rules of mainland China. The similarities between the Code and the CISG reflect a consistency between the two legal regimes that may be applicable to contracts of international sale in China. However, there are differences between them, including both direct and indirect inconsistencies; the latter may not always be resolved by the prevalence of the CISG. The major differences between the Code and the Convention relating to the formation of contract can be summarised as follows. Oral contracts. The Code art 10 recognises the effect of a contract entirely or partly made in oral form. If other relevant laws and regulations require a special contract to be concluded in writing or the parties so agree, the contract must be made in writing. The CISG art 11 states that a ‘contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form’. Since the Code art 10 makes an exception for contracts subject to special legislative requirements or the parties’ preference for the written form, the two provisions are not consistent on this particular point. The Chinese reservation on the CISG art 11, which is a blind refusal of all forms of oral contract, should be amended to reflect the present inconsistency between the Code art 10 and the CISG art 11. In case of inconsistency between the CISG and the Code, the reservation (whose substance is yet to be clarified) prevails over the relevant provision of the CISG. 1.108

Forms of communication. The Code art 11 expressly recognises the use of Electronic Data Interchange (EDI), email, written contracts, postal letters, telegram, telex and fax as forms of writing, but the CISG only specifically refers to telegram and telex, as well as written contracts and postal letters: CISG arts 13 and 20(1).90 Thus, the Code has included 1.109

specific forms of electronic data transmission or other means of modern communications that were not available when the CISG was drafted. A wide interpretation of the relevant provisions of the CISG should be capable of extending the CISG to such means of communication. Consequently, the superficial [page 68] differences between the Code and the CISG regarding this point suggest that the Code is supplementary to the CISG for the purpose of ascertaining the formation of a particular contract in writing. In particular, the Code art 16, which regulates the arrival time of an offer or acceptance via EDI or internet, may be supplementary to the CISG, which does not regulate such matters. Offers and invitations. When one party sends a proposal to another, the Code art 15 uses the intention of the party sending the proposal as the main criterion in determining whether the proposal is an offer or an invitation to treat. The CISG, in contrast, resolves the same question by considering whether the proposal was sent to one or several specific persons: CISG art 14(1). The difference between them suggests that a proposal to the public may be regarded as an offer under the Code, but an invitation to treat under the CISG. Where such an inconsistency arises, the CISG prevails. 1.110

Revocation of offers. The Code art 20(2) permits an offer to be revoked in pursuance of the relevant law, presumably regardless of whether it has been accepted by the offeree. There is no compatible provision under the CISG. There is thus an indirect conflict between the Code and the CISG. Consequently, an acceptance that is regarded as valid under the CISG may be regarded as invalid under the Code because of a revocation by the offeror in pursuance of law. Since the conflict does not fall under a reservation made by China when ratifying the CISG, the 1.111

relevant provisions of the CISG prevail where different consequences flow from the relevant provisions of the Code and the CISG. Resolving inconsistencies. These are the major differences between the Code and the CISG relating to the formation of contract. As we have seen, although the provisions of the CISG prevail in most circumstances, certain provisions of the Code are supplementary to the CISG because of the absence of any directly inconsistent rules in the CISG concerning the matters covered by these provisions. Where oral contracts are concerned, the Code still denies their validity in special but much-reduced circumstances. This inconsistency with the CISG can be justified by the reservation made by China when ratifying the CISG. However, the reservation should be amended to reflect the present position of Chinese law accurately. 1.112

Validity of contract Validity of contract is not regulated by the CISG. In an international sale of goods in China, the issue is determined under the relevant provisions of the Code, which sets out the following rules: A standard-form contract is concluded when the parties sign or seal it: art 32.91 1.113

A contract made by way of postal letters, EDI or similar means is regarded as having been concluded when a letter of confirmation is signed: art 33.92 [page 69] The place of contract is the place where the acceptance concerned becomes effective: art 35.93 Where a contract is concluded by EDI, the recipient’s principal place of business or permanent residence is regarded as the place of contract: art 34. The place of a standard-form contract is the place where the contract is signed or sealed: art 35.

An exclusion clause may be used in a standard-form contract, but the party inserting the clause needs to draw the other party’s attention to the clause in a reasonable manner: art 39. A standard exclusion clause is invalid if it excludes the liability of the party drafting the clause, increases the other party’s liability and excludes the main right of the other party: art 40.94 An exclusion clause purporting to exempt a liability arising from a personal injury claim or property damages caused by an intentional or reckless act is invalid: art 53. Under art 52, a contract is invalid if it is: 1.

made under fraud or duress, or in contravention of the state interest; 2. a result of a conspiracy to harm the interest of the state, the collective or a third party; 3. used to disguise an illegitimate purpose; 4. harmful to public interest; or 5. in contravention of law, regulations and compulsory measures. Some of the abovementioned rules are compatible with the relevant contract rules of common law, and some are not.

Performance of contracts Transfer of property Transfer of property is not regulated by the CISG. Thus, in a contract for international sale of goods involving a Chinese party or a Chinese connection,95 the transfer of property is determined according to the relevant rules of the Code. The major rules of the Code governing the transfer of property are as follows: the seller must have title in the goods to be sold, or the right to sell that title: art 132; 1.114

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unless stipulated by law, or unless the buyer knew or ought to have known of the existence of a third party’s interest in the goods sold, the seller is obliged to guarantee that no third party will claim his or her right against the buyer over the goods sold: arts 150 and 151;96 unless stipulated in law or otherwise agreed by the parties, the property in the goods sold passes to the buyer with the delivery of the goods: art 133; in a barter contract, the property in the goods bartered transfers to each party according to the terms of contract: art 175; and the parties may agree that the seller retains the property in the goods sold until the buyer has paid the price of the goods or complied with other obligations: art 134. These rules suggest that the property in goods sold normally transfers from the seller to the buyer according to the parties’ agreement. These rules are largely consistent with the relevant rules of common law jurisdictions, except for the distinction between specific goods and ‘unascertained goods’ (generic goods or goods capable of being replaced by each other) used in the common law. There appears to be no equivalent concept in the Code.

Transfer of risk Transfer of risk in a contract for the sale of goods is regulated by the Code arts 142–9 and the CISG arts 66–70. The major similarities between the two laws are: The Code expressly states that, unless stipulated by law or agreed otherwise by the parties, the risk in the subject matter sold (the goods) is borne by the seller before delivery and the buyer after delivery: Code art 142. A similar rule is implied in the CISG: CISG art 67(1). 1.115

Both state that the risk passes to the buyer, as agreed, if the buyer fails to take delivery according to the contract: Code arts 143 and 146; CISG art 69(1) and (2).

Both take the position that, unless otherwise agreed, the risk in the goods sold in transit transfers to the buyer at the conclusion of the contract: Code art 144; CISG art 68. Both provide that, in the absence of agreement, the risk passes to the buyer when the seller delivers the goods to the first carrier: Code art 145; CISG art 67. There are also differences between the Code and the CISG in this area. Where there is a direct inconsistency between the Code and the CISG, the CISG applies. Where the CISG is silent or there is an indirect inconsistency between the two, then, depending on the meaning of the inconsistency, the rules of the Code may be supplementary to the CISG. The major differences between the Code and the CISG relating to the passing of risk are as follows: The Code does not differentiate between specific goods and unascertained goods, and has no specific rule governing the transfer of risk in unascertained goods, while the CISG does: CISG arts 67(2) and 69(3). 1.116

[page 71] The Code expressly states that a failure by the seller in passing the relevant documents and information to the buyer does not affect the transfer of risk (Code art 147), but there is no compatible provision in the CISG. The Code holds the seller liable for risk if the buyer chooses to terminate the contract on the ground that the goods do not conform with the contract (Code art 148), but there is no compatible provision in the CISG. The Code states that the transfer of risk to the buyer does not affect the obligation of the seller to compensate the buyer for a loss caused by the seller’s breach (Code art 149), but the CISG states that loss of

or damage ‘to the goods after the risk has passed to the buyer does not discharge him from his obligation to pay the price unless the loss or damage is due to an act or omission of the seller’: CISG art 66. These differences may have different consequences. In the case of unascertained goods, the absence of any rule in the Code means that the relevant rules of the CISG should be followed where a contract of international sale is involved. But the Code art 147 appears to be supplementary to the relevant provisions of the CISG, because of a lack of direct or indirect inconsistency between them. Generally speaking, the passing of relevant documents, such as a document of title, may affect the transfer of property, but the transfer of property and transfer of risk are usually separate in international transactions. The Code art 148, which holds the seller liable for risk if the buyer terminates the contract on the ground of non-conformity of goods, may cause disputes in international and domestic sales. This is because, technically, the risk has passed to the buyer in pursuance of the contract before the buyer decides to terminate the contract. A more logical rule would be that the buyer remains liable for the risk until the contract is terminated, and can claim compensation against the seller if he or she has suffered any loss. Such a rule would impose an obligation upon the buyer to take care of the goods in a reasonable manner. The Code art 148 may be abused by a buyer to cause aggravated damage to the goods concerned, because the risk will eventually be borne by the seller. Therefore, it can be argued that, if art 148 remains unchanged, there should be an express qualification to art 148 to the effect that the seller is entitled to seek contribution from a buyer who has caused further damage to the returned goods. As art 148 stands, there may be an indirect inconsistency flowing from the application of the Code and the CISG to some cases. Whether or not such an inconsistency is covered by the GPCL art 142, which gives prevalence to the CISG, is unsettled in Chinese law. 1.117

Conformity of goods

Conformity is always an important issue in the sale of goods. The CISG is compatible with the common law practice concerning conformity. The Code has reduced the differences between Chinese practice and the relevant rules of the common law by addressing certain common issues concerning conformity and providing more specific rules for dealing with them. However, the Code has not adopted the concepts of ‘fitness for purpose’ and ‘merchantable quality’ used by its counterparts in common 1.118

[page 72] law jurisdictions, although the concept of ‘quality’ in the Code appears to overlap to some extent with the concept of merchantable quality.97 For purposes of comparison, the similarities between the Code and the relevant provisions of the CISG are as follows: Both require the seller to provide goods conforming with the contract or specific description: Code art 153; CISG art 35. In the absence of a specific agreement, both require the goods to meet the general purposes or standards that goods of the same description are expected to meet: Code art 62(1); CISG art 35(2)(a). In a sale by sample, both require the goods to be the same as the sample: Code art 168; CISG art 35(2)(c). In the absence of an express agreement, both require the goods to be packaged or contained in a manner suitable for protecting or preserving the goods: Code art 156; CISG art 35(2)(d). Also for comparison, the major differences between the Code and the CISG in relation to conformity are: The Code does not regard fitness of the goods as an issue of conformity, but the CISG treats fitness for ‘special purpose’ as one of the issues of conformity: CISG art 35(2)(b). 1.119

In the absence of an express agreement, the Code sets out an order of

priority among applicable standards for ascertaining the quality or conformity of the goods, as follows: the national standard, the professional standard, the ordinary standard and a special standard meeting the purpose of the contract: Code art 62(1). There is no compatible provision in the CISG. The Code specifically states that, in a sale by sample, where the sample has a latent defect unknown to the buyer, the goods must not only meet the quality of the sample but must also have the ordinary quality expected in goods of the same nature: Code art 169. There is no compatible provision in the CISG. These differences may or may not lead to inconsistencies between the Code and the CISG, depending on the circumstances. For example, in an international sale of goods governed by the CISG, the provisions of the CISG governing fitness for purpose will apply, even though there is no compatible provision in the Code. Similarly, the order of priority among the applicable standards for the determination of the goods’ quality may be used as an illustration of the CISG art 35(2)(a), which requires the goods sold to be merchantable. Since the CISG does not prohibit the determination of merchantability in such a manner, there may be no inconsistency if the Code art 62(1) is relied upon for the purpose of providing assistance in the application of the CISG art 35(2) (a) in China. The requirement in the Code art 169 that goods sold under a contract based on a sale by sample must also have the ordinary quality expected in goods of the same nature may sometimes cause inconsistency between the Code and the CISG, because 1.120

[page 73] the CISG art 35(2)(c) only requires the goods sold to ‘possess the qualities of goods that the seller has held out to the buyer as a sample or model’. If a court decides that the meaning of ‘qualities’ under art 35(2)(c)

does not include ‘latent defect’ because the defect is not a ‘quality’ known to the buyer, there is no inconsistency between the Code and the CISG. On the other hand, if a court considers the meaning of ‘qualities’ to be ‘the sample as it is’, the seller will not be liable for the latent defect in the goods. In that case, an inconsistency arises between the Code and the CISG. Where an inconsistency arises, the CISG art 35(2)(c) prevails.

Delivery Chinese law had not formulated specific rules on delivery until the Code was promulgated. Delivery is relevant to the passing of property and risk between the seller and the buyer, and to determining the performance of the parties. Inspection of the goods delivered and notice of defects in the goods are also regulated in the rules of delivery. The CISG and the Code set out largely similar rules governing delivery, as follows: Both state that the seller should deliver the goods to the buyer on the agreed date or within the agreed period of time: Code art 138; CISG art 33(1) and (2). 1.121

Both require the seller to deliver the goods at the agreed place of delivery: Code art 141; CISG art 34. In the absence of an agreed place of delivery, both adopt the same criteria for determining the place of delivery: Code art 141; CISG art 31. Both require the buyer to examine the goods received in pursuance of the relevant agreement, or within a reasonable period of time, as the case may be: Code art 157; CISG art 38. Both take the position that the buyer loses the right to rely on a lack of conformity if he or she does not inform the seller of the nonconformity within a reasonable time: Code art 158; CISG art 39(1). Both adopt a two-year limitation period in which the buyer can notify the seller of the non-conformity of the goods received: Code art 158; CISG art 39(2).

Where the goods delivered exceed the agreed quantity, both take the position that the buyer has the option of deciding whether or not to accept the excess: Code art 162; CISG art 52(2).98 Both adopt identical rules dealing with instalment delivery, including the termination of the contract relating to a particular instalment and the termination of the whole contract for a breach committed in delivery of one of the instalments: Code art 166; CISG art 73. There do not appear to be any significant differences between the Code and the CISG in relation to delivery. In fact, the rules governing delivery set out in the Code are largely identical to the relevant provisions of the CISG, except for the rules affecting the passing of risk, discussed earlier. The similarities we have seen suggest that this part of the Code was modelled on the relevant provisions of the CISG. [page 74]

Payment of price Payment of price is the major obligation of the buyer and the major concern of the seller in a sale of goods. Generally speaking, in an international sale the seller aims to control the goods to secure payment against them, while the buyer tries to control the payment to ensure that the goods conform to the terms of contract. Thus, a contract of sale often contains a clause permitting the unpaid seller to have a lien on the goods sold until full payment has been made. The issue of payment is regulated in the CISG, the sale of goods law (in common law jurisdictions) and also in the Code. Similarities between the Code and the CISG are as follows: Both state that the buyer is obliged to pay the price of contract as agreed: Code art 159; CISG arts 53 and 54. 1.122

Both (directly or indirectly) require the buyer to make payment according to the agreed time: Code art 161; CISG arts 53 and 54. In the absence of any agreement on the time of payment, both state

that the buyer should pay the price at the time of receiving the goods or the document of title concerning the goods: Code art 161; CISG art 58(1). Both adopt identical wording in stating that, in the absence of any agreement on the place of payment, the place of payment should be the seller’s place of business, or the place where the goods or relevant document of title are to be handed over to the buyer: Code art 160; CISG art 57.99 On the other hand, the Code has adopted a number of rules relating to the payment of price that are dissimilar to the CISG. The major differences between the Code and the CISG are: In the absence of any agreement on the price, the Code requires the parties to fix the price either by a subsequent agreement, or according to: 1.123

the relevant contractual terms; the relevant trading usage; the market price of the goods at the place of performance; or the relevant directives or guidance of the government, as the case may be: Code arts 61, 62 and 159. In contrast, subject to any agreement otherwise, the CISG requires the price to be determined by reference to the market price of the goods at the time of the conclusion of the contract: CISG art 55. In the absence of any agreement on the time or place of payment, besides the provisions discussed above, the Code requires the parties to fix a time or place by negotiation and permits the court to fix a time or place according to the terms of the contract or the relevant commercial usage: Code arts 61 and 161. The Code specifically states that, if the buyer fails to pay an instalment that has fallen due, amounting to one-fifth of the total price of the contract, the seller may either demand the payment of

the full price or terminate the contract: Code art 167. There is no compatible provision in the CISG. These differences may or may not lead to conflicts or inconsistencies between the Code and the CISG, depending on the interpretation of the CISG. The Code [page 75] provides additional rules for determining the sum, place or time of payment. If the relevant provisions of the CISG are regarded as exhaustive or exclusive, there is no scope for the operation of these rules of the Code. Otherwise, these rules may be regarded as supplementary to the provisions of the CISG. In addition, the payment of price in an instalment contract is not specifically regulated by the CISG. It can thus be argued that the Code supplements the CISG in this regard. Consequently, it is likely that there is no direct or indirect conflict between the Code art 167 and the CISG. Of course, this statement is subject to a reasonable and narrow interpretation of the provisions of the CISG.

Remedies for breach of contract under the Code Suspension of contract Suspension of contract performance is a temporary measure to relieve an innocent party from performing his or her obligations under a contract. It is different from rescission or termination of a contract because the performance may be resumed if the situation justifying the suspension ceases to exist, or if the condition stipulated in law for resuming performance occurs. It is also different from the termination or rescission of a contract in the sense that it is often based on evidence suggesting the probability of a future breach or used to prevent damages 1.124

likely to be caused by a party’s future breach. The right of suspension is fair to the innocent party because the other party has shown some evidence of his or her inability to perform contractual obligations in the future. The Code permits a party who is obliged to perform a certain obligation under the contract ahead of the other party’s performance to suspend his or her own performance if the other party appears to be unable to perform his or her obligation: Code art 68. This rule has a strong flavour of the continental law tradition, in the sense that it assumes the existence of an order of priority between the parties’ obligations to perform a contract, implying the existence of an obligation and right in the order of performance. It appears that the right to suspend a contract is a right to be exercised by the party who is obliged to perform certain contractual obligations before the performance of the other party. In this sense, the rule of anticipatory breach in a common law jurisdiction may be similar to this rule of suspension in Chinese law. The Code art 68 permits an obligor to suspend performance of his or her obligations in any of the following situations: the other party’s state of business has seriously deteriorated; 1.125

the other party has transferred or moved his or her property or money for the purpose of avoiding his or her obligations and debts; the other party has lost his or her business reputation; or there is any other possibility of the other party losing or becoming likely to lose the ability to perform his or her obligation. The party intending to exercise the right of suspension is obliged to provide evidence. Otherwise, the party suspending the performance is liable to the other party for breach of contract. If a party intends to exercise the right of suspension under the Code art 68, he or she must inform the other party of the decision promptly: Code art 69. If the 1.126

[page 76] other party provides adequate security for performance, the suspending party should resume his or her performance. The suspension is a transitional stage for the suspending party to rescind the contract. Under the Code art 69, if the other party is not only unable to regain the ability to perform, but also fails to provide an adequate security for performance, the suspending party is entitled to avoid the contract concerned. It appears that art 69 does not permit a party to avoid a contract if the other party has provided an adequate security, regardless of whether the latter has shown an ability to perform.

Termination of contract Termination of contract is one of the basic remedies in contract law. The rights and obligations of the contracting parties under the contract, which are reciprocal and correspondent, cease to exist after termination. If one party breaches the essential terms of a contract, or fails in or is unable to perform his or her essential obligations, it would be unfair to the innocent party to compel him or her to perform his or her obligations under the contract unilaterally. Thus, termination of the contract is one of the options available to ensure fairness in commercial relationships. Sometimes a contract cannot be realistically performed as the parties intended because of some reason beyond their control; in that case, termination of the contract appears to be the only fair and reasonable solution to relieve the parties from their obligations to each other. This is also necessary to ensure the stability of commercial relationships and the dignity of the law governing contracts. 1.127

The Code art 94 states that a party is entitled to terminate a contract in any of the following situations: 1. the purpose of the contract cannot be realised due to force majeure; 2. before the expiration of the time for performance, a party has stated expressly or by conduct an intention not to perform his or her major obligations; 1.128

a party has not only failed to perform his or her major obligations within the agreed time, but has also refused to perform them within a reasonable time after the other party’s notice to urge the performance; 4. the purpose of the contract cannot be realised due to a party’s delay in performing his or her obligations, or due to another breaching act; or 5. any other situations stipulated in law. It must be pointed out that the Code regards the option of terminating a contract as a ‘right’. The Code art 93 actually uses the expression ‘holder of the right of termination’. Such a treatment of termination reflects one of the underlying notions, if not the underlying notion, of the Code: a contract is largely based on the dichotomy of right and obligation. In other words, a contract is by nature an obligation. 3.

The first ground for the termination of a contract is commonly accepted across the world. Usually it refers to any natural cause, any reason beyond the control of the contracting parties or any reason for which neither contracting party is liable. It must be pointed out that, under the Code the change of the party’s name or title, or any personnel change involving the appointment or resignation of the legal representative, director or responsible person of a contracting party does not constitute force majeure and thus does not affect the party’s obligations under the 1.129

[page 77] contract concerned: Code art 76. This provision is included in the Code largely because of the malpractice of many Chinese companies, in particular those owned by the state or by collectives, designed to avoid their contractual obligations on the ground that their managerial structure or their identity has been changed. 1.130

In the second and third grounds for termination, the Code

appears to have adopted something similar to what is known as ‘fundamental breach’ under the CISG or a ‘breach of fundamental terms’ in the common law tradition. These grounds both refer to a ‘breach of major obligations’. As we have seen, the second ground allows a party to terminate a contract on the ground that the other party has shown an intention to refuse to perform the latter’s ‘major obligations’. The relevant words in Chinese may also be translated as ‘main obligations’, ‘principal obligations’ or, very arguably, ‘fundamental obligations’. The third ground uses the same expression, ‘major obligations’, and allows a party to terminate a contract if the other party fails to perform his or her major obligations even after the first party has given an extension for performance and urged the latter to perform. The meaning of ‘major obligations’ is unclear, but can be assumed to be similar to ‘fundamental breach’ or ‘breach of fundamental terms’. However, different judicial interpretations of these concepts can be expected. ‘Major obligations’ implies that a party cannot terminate a contract on the second or third ground if the other party has not breached or has not refused to perform any ‘major obligation’. The differences between the second ground and third ground in art 94 are not clear. The second ground permits a party to terminate a contract if the other party has shown an intention by conduct not to perform his or her major obligations. But the third ground appears to request a party to give a warning or notice to urge the other party, who has failed to perform his or her obligations within the time stipulated by the contract, before the first party can terminate a contract. The second and third grounds are inconsistent in the sense that the second ground appears to suggest that non-performance is itself an indication of a party’s intention to breach his or her major obligations, but non-performance within the stipulated time for performance is insufficient for a party to terminate a contract on the third ground. If such an interpretation is correct, who would bother to rely on the third ground for termination? The coexistence of the second and third grounds may perhaps be explained by two reasons: first, a party’s non-performance within the stipulated time may not, per se, be an indication of an intention to breach 1.131

his or her major obligations; and, second, the third ground is intended to have the same function as the CISG arts 47, 49, 63 and 64 — that of encouraging the use of a grace period to facilitate the performance of a contract. However, the first reason may be challenged on the ground that, if the delay in performing a party’s major obligations is not the party’s fault, the party is not liable. Why should the party be penalised later in an additional period for performance by giving the other party a right to terminate the contract, while the first party is probably entitled to declare a contract avoided on the ground of force majeure? In addition, it is arguable that certain non-performance without justification always constitutes a breach of major obligations. [page 78] The third ground of art 94 appears to be similar to what is known as the ‘grace period’ set out in the CISG arts 47 and 63 and the right to terminate a contract at the end of a grace period, as set out in the CISG arts 49(1)(b) and 64(1)(b). Articles 47 and 49 apply to the buyer, and arts 63 and 64 apply to the seller. The rights and obligations of the buyer and the seller are parallel to, or correspond with, each other. The fourth ground under art 94 does not refer to ‘major obligations’. It focuses on the issue of whether or not a party’s breach of contract has made the realisation of the goal of the contract impossible. Is this ground closer to the meaning of ‘fundamental breach’ under the CISG and ‘breach of fundamental terms’ under the common law tradition than the previous grounds referring to ‘major obligations’? The answer lies in the hands of the court, because all of the grounds are capable of covering the same issues, also covered by the concepts of ‘fundamental breach’ and ‘breach of fundamental terms’. It appears that all of the grounds are supplementary to each other, providing a basis for the termination of a contract whenever it is necessary and justified. 1.132

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The Code art 166 provides that, on the ground that the purpose

or object of the contract cannot be fulfilled due to a breach in any instalment, the buyer may terminate the relevant part of the contract, the future part of the contract or the whole contract, including the part already performed. It appears that the Code art 166 is modelled on the CISG art 73.

Damages Damages are one of the feasible ways recognised by law to compensate an innocent party for losses sustained as a result of the breaching party’s act. They should reflect a fair assessment of the loss sustained by the innocent party. Sometimes a reasonable sum of penalty against the breaching party may arguably be implied in the sum of damages granted. Although a common law court may be reluctant to grant punitive damages in a contractual dispute,100 the Code art 114 expressly permits the court or an arbitration tribunal to fix the sum of a fine or penalty according to the method of calculation agreed by the parties in a contract. The discussion that follows uses ‘damages’ in a broad sense, covering all forms of monetary compensation that a court may grant to an innocent party under the Code and the CISG. 1.134

The major provisions of the Code regulating damages are arts 107 and 112–16. Article 107 states the breaching party’s obligation to remedy his or her breach by remedial acts or by compensation. Article 112 states the right of an innocent party to seek damages if the remedial act of the breaching party has not cured or remedied all the losses sustained by the innocent party. The Code art 112 is compatible with the CISG arts 45(2) and 61(2). The Code art 113 states that the sum of compensation should be equivalent to the loss caused by the breach, including the expected profit that might have been gained if the contract had been performed, but cannot exceed the sum of loss foreseen or foreseeable by the breaching party at the time of the conclusion 1.135

[page 79]

of the contract. This provision is largely identical to the CISG art 74, suggesting that art 74 has strongly influenced the drafting of the Code art 113. The Code art 114 regulates the use of a fine or penalty in a contract. Under that provision, parties may agree the sum of the fine or penalty in case of a breach by any party; they may also agree the method for calculating the fine or penalty. The relevant Chinese word in art 114 can be translated as either ‘fine’ or ‘penalty’. If the fine or penalty fixed in a contract is lower or excessively higher than the actual loss, a party may ask the court or the relevant arbitration authority to increase or decrease the sum accordingly. If a fine or penalty is imposed for late performance, the payment of the fine or penalty does not relieve the obligor from the obligation to perform the obligation. In the light of art 114, it appears that a fine or penalty is proportionate to the actual loss caused by the breaching act concerned. In practice, the application of art 114 may be problematic. In a case of late performance, the loss is restricted to the loss caused by the late performance. In comparison, where a contract is terminated due to non-performance, the loss includes the loss caused by the termination of the contract. If the loss is assessed in this way, what is the difference between a fine or penalty under art 114 and damages under art 113? It appears that some clarification of art 114 by the court may be necessary. The CISG does not have any equivalent provision concerning the use of a fine or penalty in a contract. The Code art 115 regulates the use of a deposit. This provision states that the parties may, in pursuance of the Law of Guarantee of the People’s Republic of China, agree on the payment of a deposit as a guarantee. If the party paying the deposit has performed his or her obligation, the deposit may be converted to the payment of price or be returned to him or her. If the party paying the deposit fails to perform his or her obligation, he or she is not entitled to demand the return of the deposit. On the other hand, if the party taking the deposit fails to perform his or her obligation, he or she must pay the party that paid the deposit a sum twice that of the amount of the deposit. The punitive 1.136

nature of such a deposit is clear. There is no compatible provision in the CISG. It appears that both a fine and a deposit may not be applied in the same contract. Article 116 provides that, if parties have incorporated both fine and deposit clauses in a contract, the innocent party may choose one of the clauses, suggesting that the two forms of punitive remedy are not available in the same contract. Generally speaking, the provisions of the Code concerning damages show a strong tendency to provide remedies to penalise the breaching party; in comparison, the provisions of the CISG focus more on compensating the innocent party for loss. Mitigation of loss is an important aspect of damages. The innocent party has an obligation to mitigate losses incurred and to prevent as much as possible the aggravation of losses. This is rational and sound in economics, as well as sensible and fair to the party breaching a contract. Both the Code and the CISG require the parties to mitigate losses whenever possible. The Code art 119 provides that the innocent party should adopt adequate measures to prevent the aggravation of the loss caused by the breaching party. If the innocent party fails to mitigate the loss concerned, he or she is not entitled to claim damages for the aggravated damage caused by his or her failure. 1.137

[page 80] The cost for mitigating losses is borne by the breaching party. A similar position has been taken by the CISG art 77. Although the wording of these provisions differs, they appear to be capable of reaching the same result in the same circumstance.

Specific performance Specific performance means that the court directs a party to perform a specific act in pursuance of the contract concerned. As a remedy, it appears to be tough on the breaching party in the sense that, in 1.138

certain circumstances, the breaching party may be willing to pay damages rather than to perform the contract. On the other hand, it appears to be fair and just to the innocent party where that party’s loss cannot be assessed adequately by financial compensation or cannot be compensated by damages at all. However, whether or not a particular situation justifies the grant of specific performance is totally subject to the discretion of the court. This may lead to some degree of unpredictability in the decision of the court. This is probably one of the reasons for the reluctance of courts in common law jurisdictions to grant specific performance. The Code arts 109–11 regulate specific performance. Article 110 is the principal provision; arts 109 and 111 supplement art 110. It appears that the Code has adopted a generous attitude to the use of specific performance. Article 110 states that, if a party does not perform his or her obligation and that obligation is not a financial obligation, or does not perform the obligation properly according to the contract, the other party may request the first party to perform the obligation concerned, unless one of the following situations arises: performance is impossible in law or in practice; 1.139

the subject of the obligation is not suitable for performance, or the cost of performance is too high; or the obligee has not requested performance within a reasonable time. This provision suggests that specific performance is generally available unless the obligor establishes that one of the situations prescribed in art 110 exists. Article 110 supports either a request by the innocent party made directly to the breaching party or an action brought by the innocent party to request a court to order specific performance. Article 110 does not cover all situations where specific performance may be adequate to remedy the loss of the innocent party. For example, the buyer’s failure to pay the price of contract is not covered by art 110. Thus, art 109 provides that, if a party has not paid money or other rewards in compliance with the contract, the other party may request the first party to do so. Of course, if the breaching party refuses 1.140

to comply with the innocent party’s request, the court will force him or her to pay the innocent party under art 109. Article 111 deals with a different type of specific performance. This provision states that, where the subject matter of the contract (including goods) does not conform with the contract, and in the absence of an agreement on quality, the innocent party may choose to: 1.141

[page 81] request the breaching party to repair, substitute or remake the subject matter; return the non-conforming subject matter to the breaching party; or reduce the price or reward for the non-conforming subject matter. Because art 111 applies to all types of contract — including, for example, service and processing contracts — the ‘subject matter’ concerned may not necessarily be goods. This type of specific performance is different from the specific performance under art 110, in the sense that it largely involves an act to make the non-conforming goods conform by various, feasible means. In addition, art 111 applies only to disputes on quality where no other means of resolution has been stipulated by the contract, fixed by the agreement of the parties or established by relevant commercial usage. Thus, the right of the innocent party to seek specific performance under art 111 depends on the nature of the subject matter or the goods involved, and the extent of damage to them.

General operation of the Code In summary, it can be said that all types of commercial contracts made in China or with a Chinese party (such as service contracts, loan agreements or transfer-of-technology contracts) may be subject to the Code. Contracts for the establishment of foreign investment enterprises 1.142

are not regulated by specific provisions of the Code. Thus, we can expect to apply the general principles of the Code to such contracts. In the absence of specific rules, it is possible that a foreign investor investing in China also needs to consider the relevant foreign investment law. The precise boundary between the Code and the relevant foreign investment law in relation to a contract for the establishment of foreign investment enterprise is yet to be ascertained by a court. In this sense, the outer limits of the Code have yet to be demarcated by a court or by the Standing Committee of the National People’s Congress (NPC). Finally, it can be said that the passing of the Code is good news for foreign companies and those who deal extensively with Chinese companies and business people. Contractual principles and specific rules are transparent and ascertainable under the Code, reducing and preventing the abuse of judicial discretion in handling disputes arising from contracts. Although the Code is not yet perfect or fully comprehensive, it is an important step for the People’s Republic of China in its movement towards the rule of law. The Code offers a certain theoretical basis for developing contractual rules relating to many other types of contract that it does not specifically address. Of course, the application and the efficacy of the Code are yet to be tested. It remains to be seen how it works in practice, and amendments may be expected in the future. 1. 2. 3.

4.

5. 6.

UNCITRAL Model Law on International Commercial Arbitration art 1(1) footnote. CISG art 2. The case involved the sale of an aircraft located in Darwin. The buyer refused to pay the full price on the grounds of misrepresentation. The court found in the seller’s favour and granted damages to the seller. ‘Customs territory’ is an important concept in the present environment for international trade, which is largely regulated by World Trade Organization (WTO) agreements. Under the present WTO structure, a customs territory can be a member of the WTO and also a party to the WTO agreements, even though it is not a sovereign country — which is a precondition for making many international treaties and conventions. Examples of customs territories within the WTO include Hong Kong, Macau and Taiwan. A full list of member countries is available at . For more information, see C M Schmitthoff, Schmitthoff’s Export Trade, 9th ed, Stevens

7. 8. 9.

10.

11. 12. 13. 14.

15.

16. 17. 18. 19. 20. 21. 22.

& Sons, London, pp 241–9. Israel denounced the 1964 Uniform Law on 16 October 2001 with effect from 16 October 2002. See the UNIDROIT website at . The relevant information is available at and . The Convention was concluded in 1974 and came into operation on 1 August 1988. It was amended on 11 April 1980 to ensure its consistency with the CISG. Technically, the Convention without the amendment and the Convention as amended are two separate regimes or conventions. In March 2015, the Convention without amendment had 29 members and the amended Convention had 22 members. The information is available from the UNCITRAL website at