FilantovChilewich实用教案

1、FactsFilanto（Seller ）Chilewich（Buyer ）（Seller ）Raznoexport（Buyer ）Negotiated & offered to purchase the boots Contract for the sale of shoes containing arbitration agreement in Moscow第一页，共17页。TimelineFilantoChilewichIn March 1990Did not sign but kept this memoSent a signed ”Memorandum Agreement”

2、(containing price, payment, delivery terms and requirement of the letter of credit, incorporating the arbitration agreement) to Filanto for its signatureIn May 1990Accepted the letter of credit Shipped some boots Furnished the letter of credit to Filant Paid some bootsIn August 1990Signed and return

3、ed the memo but with a cover letter to exclude the arbitration clauseRejected Disputes Enforce the balance of the contractSued in American district courtDid not accept the balance of the bootsCase must be arbitrated in Moscow第二页，共17页。 Legal Fact Procedural disputesplaintiffdefendantThe balance of th

4、e contract should be enforcedNever accepted the balance of the boots it had ordered.Should the balance of boots be paid?Brought this case to United States District CourtThe case must be arbitrated in MoscowWhether the case shall be heard in the U.S District Court or to be arbitrated in Moscow?plaint

5、iffdefendantSubstantial disputes第三页，共17页。Legal IssueGeneral legal issue“Whether the case shall be heard in the U.S. District Court or arbitrated in Moscow?”Specific legal issue“Whether the actions acted by Filanto in May constitute an acceptance ?”“Whether the attempt to exclude the arbitration clau

6、se by Filanto is effective ?”第四页，共17页。Filanto(Plaintiff)Chilewich(Defendant)V.SPartial paymentPartial deliveryMay Signed and returned the memo Excluded the arbitration clauseNever accepted the balance of the bootsAugust Defendant contended that the plaintiff had already made their acceptance in May

7、Plaintiff alleged that they didnt make their acceptance until August“ Whether the actions acted by Filanto in May constitute an acceptance ? ”“ Whether the attempt to exclude the arbitration clause by Filanto is effective ? ”第五页，共17页。Reasoning Applicable law：CISG American company Chilewich purchased

8、 bootsfrom Italian company Flanto.Art 1 This Convention applies to contracts of sale of goods between parties whose places of business are in different States:(a) when the States are Contracting State第六页，共17页。The Memorandum agreement was an offer, though Filanto did not sign and return the memo in M

9、arch, in light of the parties course of dealing and Filanto shipped some boots in May , Filantos silence can be an acceptance.Article 18.(1)A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptanc

10、e.Article 8.(3)In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subs

11、equent conduct of the parties.第七页，共17页。Article 18.(3) However, if, by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing an act, such as one relating to the dispatch of the goods or payment

12、of the price, without notice to the offeror, the acceptance is effective at the moment the act is performed, provided that the act is performed within the period of time laid down in the preceding paragraph. Flantos idea Flanto accepted the Memorandum Agreement , excluded the arbitration clause.Chil

13、ewichs ideaFilantos action in August was a proposal for modification of the Memorandum Agreement. And Chilewich rejected this proposal.Judges ideaFlanto was under a duty to alert Chilewich in timely fashion to its objections to the terms of the Memorandum Agreement. There was an agreement to arbitra

14、te between these parties.第八页，共17页。Reasoning 2whether the dispute should be arbitrated in Moscow ? Plaintiffs claim：the Court should take judicial notice of the unsettled conditions in MoscowContends that the disputes should be arbitrated in US The Court：the dispute should be arbitrated in Moscow Bot

15、h the plaintiff and defendant did agree to arbitrate their disputes in MoscowThe arbitration forum in this case does have a reasonable relation to the contract at issueWe should believe that the chamber of commerce in Moscow can provide fair and impartial justice to these litigants第九页，共17页。From the

16、legal effect of Filantos factual conduct:The actions acted by Filanto should be constituted an acceptanceFilanto accepted the memorandum agreementFilanto is bound to the memorandum agreement(contains arbitration provision)Filanto is bound to the arbitration provisionFilanto agrees to arbitrate their

17、 disputes in Moscow第十页，共17页。From the relevance of the arbitration:The ultimate purchaser is a Russian concern & The Russian Contract is incorporated by reference into memorandum agreement between Chilewich and Filanto the arbitration forum have a reasonable relation to the Russian contract betwe

18、en Chilewich and Raznoesport The arbitration is relevant to 3 parties: Chilewich, Filanto, Raznoesport第十一页，共17页。From the unsettled conditions as plaintiffs defense:Russia continue to improve&We should believe that the chamber of commerce in Moscow can provide fair and impartial justice to these litigantsIt can not be a effective defense of arbitration forum第十二页，共17页。From :the legal effect of Filantos factual conductthe relevance of the arbitrationthe unsettled conditions as plaintiffs defenseThe dispute should be arbitration in Moscow第十三页，共17页。The parti