Issue
Discuss about the Rules Of The International Chamber Of Commerce.
In the present scenario, the issue is related with any benefits that may be available to Tony in case he decides to incorporate a company. Similarly, the organizations that can give advice to Tony in context of international trade also need to be mentioned. Tony also wants to know the ways in which he can minimize risk when he is transporting goods internationally. Another issue is related with the most appropriate Incoterm in the present scenario.
There are a number of benefits available to the companies that are involved in international trade. Therefore, it is always advisable to form a company with another person is going to trade internationally. Significant growth can be achieved by the business if a company has been incorporated for this purpose. It is easy for a company to experience growth as it has exposure to new markets (Richardson, 1997). On the other hand, the competitors do not have access to these benefits.
There are several international and domestic organizations that can provide advice to the parties who are involved in international trade. Some of these organizations are the World Trade Organization, UN Commission on Onternational Trade Law, International Chamber of Commerce (ICC), Organization for Economic Cooperation and Development (OECD) and World Customs Organization. These organizations can provide relevant information in their particular field of operations. Such information is very useful for the organizations that are involved in international trade. The ICC makes the rules that are related to the performance of international trade. In the same way, ICC also provides dispute resolution services to the parties involved in international trade. The services can help the parties in facing the problems that arise in international trade and also in resolving disputes.
There are several ways in which risk can be decreased when the parties are shipping gods to international traders. One way to do so is through transportation insurance. As a result, international Abu insurance is highly recommended when goods have to be shipped to international destinations. In this regard, it is important to note that the liability of the carriers is limited regarding the goods that they are shipping through sea or air. In the same way, the responsibility lies with the owner of the goods before the place of delivery to international traders (Radtke, 2011). A set of terms have been introduced by the ICC so that a common terminology can be provided for being used. In case of international shipping of goods and so that any misunderstandings can be reduced. Such terms are known as Incoterms. These are available in a number of different languages. The parties can rely on these Incoterms, in order to describe the major terms of the contract concluded between them for the purpose of international trade and shipping of goods.
In the present case, Incoterm Ex Works can be described as the most suitable term for Tony. This Incoterm provides that the goods are prepared for transfer by the party that is the seller of goods. Therefore, according to the theory, the seller of goods has the responsibility in this regard until the goods have left the factory or the storage of the seller. Even if the transportation has been contracted by the buyer in this term, but in many cases, the oversight of the seller may be necessary for loading goods at the initial stage (Rushton, Croucher and Baker, 2010). Therefore, in principle, it is the responsibility of the recipient of goods that has imposed by this Incoterm. But generally it has been seen that the seller is required to organize the loading of goods (Ramberg, 1999). This happens due to convenience and logic. As a result of the presence of this ambiguity, it is significant that the contracted clearly describe the party that will have the responsibility in case any incidents takes place with the goods.
Rule
After going through the above mentioned legal provisions, it can be stated that several benefits are available in case of the formation of a company. At the same time there are several organizations that are available to the parties to provide advice. In case of international trade one of the ways to reduce the risk present in the international shipping of goods is to use transportation insurance. At this point it needs to be stated that the carriers only have limited liability for the goods. Therefore, generally the responsibility lies with the owner of the goods. It is also very important that the most suitable Incoterm should be used by the parties. In the present case, the suitable Incoterm appears to be Ex Works.
Conclusion:
Many benefits are available as a result of the formation of a company when the parties are going to involve in international trade.
There are many organizations like the ICC, that can give advice to Tony.
Tony can also rely on transportation insurance for reducing risk.
The most suitable Incoterm appears to be Ex Works.
The relevant issue in this scenario is if the parties have included a valid contract. A right is available to Britney to correct the typographical error? If the outcome would be different, if the error was discovered by Britney only after the delivery of the safe? According to the rules of the Convention, when the e-mail sent by Britney can be considered to be sent and received.
UNCITRAL model law provides that in context of electronic contracts to rounds of mistakes are present. Consequently a mistake can be the mistake made by the parties or the mistake of the automated system. Hence, when the mistake has been made by a natural person, it can be made in two ways. Either the mistake can be made in data entry, or it can be patently false. It can be stated that the mistake has been made in input by a natural person or the mistake has taken place in data entry, occurs when the buyer had made such mistake. An example can be given a situation where the digit has to be pressed one times, but by mistake the buyer presses it two times. The result will be that the buyer had the intention of purchasing 2 items but by mistake, enters 22. In this situation, the part intended to purchase the goods, but had made a mistake in data entry. Such mistake can be made regarding the quantity of goods or nature of goods. In such a case, a solution has been provided by the Convention regarding the mistake.
According to Article 14, when the buyer had made an important mistake in case of automated system that is being used by the other party and when the system did not provide a chance for the buyer to the buyer is providing a right to withdraw that part of the electronic communication. The mistake was made, if: –
The buyer who had made the mistake, had informed the other party that a mistake had been made as soon as the buyer became aware of the mistake making electronic communication and the buyer had not received any significant benefit of value in accordance with the contract.
Application
The law also provides that the provisions mentioned in this Article will not have any impact on the rules governing the cost of any error apart from the editors mentioned above.
In this scenario, another was made by Britney while she was making a data entry for placing an order for the safe. Therefore, instead of ordering the MXR8v2 safe, Britney ordered MRX8 v2 Safe. In such a scenario, the law provides that even if a valid contract has been formed between the parties, but the right is available to the party that has made a mistake to remove that part of the communication where the mistake was made and the automated system used by the party did not provide a chance to amend such mistake. Therefore, in this case, it can be said that Britney or Moscow House have a right to withdraw this part of the communication where a mistake was made.
According to Article 14, the party, making a mistake is allowed by the law to withdraw such part of the communication. Therefore if the automated system did not allow the party making the mistake correct it, such right is available to the party. Hence, this Article provides that the seller should provide the procedures that are capable of detecting and correcting any error made by the other party, while negotiating e-contracts.
In the present case, if Britney found that another was made only after receiving the delivery of the safe, the right would not be available to her to withdraw the part of communication. The reason is that when the buyer had received any considerable advantage under the contract, the buyer is not allowed to withdraw the communication.
It has been mentioned in Article 3 that unless the parties have agreed otherwise, it is presumed that the other party had received the written communication when it was delivered to the addressee in person, or at the mailing address or place of business of the party. In case of electronic communications, it is mentioned in Article 10 that the time of receiving the e- communication would be the time when the communication can be received by the other party on the electronic address of the party. Hence in this scenario can be presumed that the other party and receive the e-communication.
Conclusion:
In this case, an option is available to Britney to withdraw the part of e-contract where Britney had made a mistake in entering the model of the safe.
A right has been provided by the law to amend any typographical mistake if such party had given a notice regarding the mistake to the other party as soon as it became known.
On the made the mistake was discovered by Britney only after it had received the safe, she could not rely on this remedy.
The e-mail sent by Britney is considered to be received by the Fashion Design on 22 November.
UNCITRAL Model Law on electronic signatures is applicable in case of all the electronic signatures that have been used in commercial activities. In this regard, different electronic signature technologies that have been used by the parties are considered similarly by the law. Therefore, electronic signatures can be suitable and reliable in case of communication of data messages. It has been mentioned in Article 6(3) electronic signatures can be used by the parties in case of contracts that (i) data is used exclusively for creating the signature is only with the signatory (ii) the signatory enjoys exclusive control on the data related with the creation of signature (iii) if any alteration is made the signature afterwards, it can be detected; and (iv) the signature confirms that the integrity of information and after signing any change in such information can be discovered.
Conclusion
Certain obligations are present for the signatories under the UNCITRAL Model Law on Electronic Signatures. Therefore it is important that the signatories should exercise due care for the purpose of managing the data related with signature creation. They should inform immediately to the person who’s going to rely on the data if there’s a compromise of such data. In the same way, the signatories are also required to ensure that the representations made in signature certificate are true.
The New York Convention mentions in Article 5.2(b) that is available to the court to refuse to recognize her implementing a foreign arbitration award in case it is against the public policy of host country. However the term public policy has not been described by the Convention. As a result, there is a conflict present in the courts of contracting nations. Similarly, being a contracting country, China has not provided legal explanation of the term public policy. But in this regard, some suggestion can be available from the reported cases. Similarly it also needs to be mentioned that a significant difference exists between the language that has been used in the Convention and the language of relevant Chinese legislations. Therefore the term public policy has been used by the convention, but on the other hand, the term public interest is user with the Chinese legislation. The discussion has been going on returning the difference between terms. However, for clarity and convenience, these two terms can be considered as being similar. Due to the need for clarity concerning the scope for public policy and the fact that this term is open to legal explanation, the courts in China have refused to use public policy as the ground to refuse recognizing and implementing the arbitration award of a foreign country. Therefore, if there are additional grounds present for refusing the acknowledgment and enforcement of foreign award, the courts will not go into the issue of public policy.
the parties may refer the dispute to the ICC standard clauses of ICC will be applicable for arbitration or dispute resolution, in the contract formed between the parties. The standard class can be found in several different languages. It is also not necessary that the party opting for arbitration under ICC could also be a member or that such party should have any affiliation with the ICC. But it is required that the party should have agreed in the contract regarding arbitration by ICC. Such parties can be an individual, corporation or a State.
Although the objective of arbitration on one hand and mediation and negotiations on the other, is to resolve the disputes between the parties, there are certain differences present between the ADR methods. The difference that exists between arbitration and mediation is that in case of arbitration, the evidence produced by the parties is heard by the arbitrator and then a decision is made (Warren, 2010). Therefore, to this extent there is a similarity between arbitration and litigation. But in case of litigation, evidence is also produced by the parties but the process adopted in arbitration is generally less formal. On the other hand in case of mediation and negotiation, the parties try to resolve the dispute through negotiations. The process is completed by the parties, while they are helped by a third party (King et al., 2009). Therefore in mediation and negotiations, the parties resolve the dispute only if all the parties have agreed to the solution.
In the process of litigation, the issue has to be decided by the courts. However in arbitration, it is agreed between the parties that a neutral third party will help them in resolving the dispute. As a result, in case of arbitration, there can be one or more arbitrators (Kinchin, 2007). The arguments forwarded by the parties are heard by the arbitrators and then a decision is made by the arbitrator. At this point it needs to be stated that in case of arbitration, the process is informal and private. However, the process of litigation is a formal process (French, 2007). It takes place in public. The benefits and problems that are present in case of litigation and arbitration have been mentioned below:
Litigation is a public process. On the other hand, the process of arbitration is private. In case of arbitration, only limited process of evidence is available. But in case of litigation, the legal rules of evidence are applicable. In case of arbitration, the parties are free to select any person as the arbitrator (Downes, 2008). However, the parties cannot decide the judge in case of litigation. Under the circumstances, it is clear that the process of arbitration is informal, but litigation is a formal process.
References
Downes G, 2008, “Alternative Dispute Resolution at the AAT”, 15 AJ Admin L137
French B, 2007, “Dispute Resolution in Australia – The Movement from Litigation to Mediation”, 18 ADRJ 213
Kinchin N, 2007, “Mediation and administrative meritsreview: An impossible goal?” 18 ADRJ227
King M, Freiberg A, Batagol B and Hyams R, 2009, Non-Adversarial Justice, Federation Press, p 88
Radtke, C. M. 2011, “The new Incoterms 2010 rules of the International Chamber of Commerce”, ICC Masterclasses 3
Ramberg, J., 1999, ICC Guide to Incoterms 2000, Paris, ICC Publication no 588
Richardson, J. W. 1997, The Merchants Guide 1998 Edition, Rotterdam, P&O Nedlloyd, 11
Rushton, A., Croucher P. and Baker, P. 2010, The handbook of logistics & distribution management, London, Kogan Page, 331
Warren M, 2010, “Should Judges be Mediators?”, 21 ADRJ 77
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