Chapter4: Legal Framework
1. Choice of law
Anglo-American and Continental
The Anglo-American is based on common law
The Continental is based on civil law
Predictability and Consistency
The decision of the judge is not fully predictable; Different judges may
give widely different judgements.
Most difficult cases are predictable with some accuracy; Decisions are
generally consistent from court to court.
International acceptance:
The principles are widely understood and respected (Common)
They tend to focus on national rather than international issues (civil law)
Vienna sales convention was promulgated by united nation
The rules spelled out in the convention replace the law of any country
that ratifies it.
The drafts of the convention expressly allow the parties to a contract to
exclude the convention with wording such as:
The Vienna convention of 1980 on international Sales Contracts shall
not apply to this contract
2. Contract or no contract
- Meeting of minds
A phrase in contract law used to describe the intentions of the parties
forming the contract.
NO meeting of mind: No contract
By Duress (the use of physical force or mental pressure by one party to
make the oth party agree to the contract.) and Mistake and fraud
(Mistake about the goods and a deliberate fraud)
- Offer and acceptance
- Power to make a contract
- Legality of purpose
- The exchange of consideration
Two types of agreement No contract: one-side contract
One side has only right and the other side has only duties
It is governed by the law of sealed instrument
Contracts: Two-sided contract
Each party has rights and each party has duties
It is governed contract law
Each side must provide valuable consideration to each other
Two-sided and one-sided
Two situations in which the exporter may meet one-sided agreement
Release from an obligation
Agreement to Modify of a contract
3. Entire agreement
Most international contracts include an “entire background provision”
with provided context: The background of the contract is fully
detailed in the contract itself, important letters and memoranda must
be listed as “contract document
Anglo-American law states
When the contract is the “entire agreement”, the lawyers write the
background of the contract into it through the whereas-recital (Back
ground of the contract)
Whereas, Considering, Because: Xét thấy.
Contract Documents
in international practice, the parties often wish to “incorporate”
outsidematerial into the contract: lettesr, general conditions, the
Incoterms, etx. To achieve this
4. The parties
The principle
On the first page of most contracts is the name of each party. When it
first appears, the name is normally the full, registered name of the
company. Often a few words of description follows: Usually the
location of the company itself.
Hereinafter – after in this contract: Sau đây, [] sẽ được gọi trong hợp
đồng là {}
Notices
The official mailing addresses of the parites are not usually given in
the opening section of the contract.
Assignment of Rights and Delegation of Duties
Under a contract, each side has rights and duties. A right has some
commercial vaule – so it is possible to sell it, trade it, or give it away.
Many contract contain a clause like “Assignment of Rights and
Delegation of Duties”
5. Status of contract
Discharge by Performance: Thanh lý hợp đồng (Biên bản)
Termination: When either party pursuant to a power create by
agreement or law puts an end to the contract otherwise than for its
breach
Rescission
Cancellation
Impossibility and Frustration
6. Settlement of dispute
Panel of arbiter: 3, each party appoints one the two parties apioint the
third arbitrator.
Quick
Costs are predictable
More confidential
More reliable
Decision is business-oriented