广外法律英语重点(4)

General Issue----What is the applicable law of the case, the CISG or state law？ Specific Issues----

(1) Whether the contract is between parties whose places of business are in different countries

(2) Whether the parties has opt out the CISG effectively?

(3)Whether the CISG preempts state law? (Whether the federal court has the jurisdiction over this case?)

Reasoning:

1、Place of business requirement

2、Choice of law clause

3. Federal preemption

Decision:

3. 之真假红豆证是否应该强制执行 Facts:

a. b. c. d. e. Colombian request Buyer(Cometals) for a C/O issued by an EEC chamber of Commerce

f. Plaintiff: D说红豆质量不好拒绝接受。诉讼的目的是让他们的合同由法院强制执行,这样买家可以接受货物和付款。

g. Defendant:Their agreement should be declared invalid, unenforceable.他们的协议应该被宣布无效,无法执行。

Legal issue:

Whether the court should enforce the contract between C and T.

----Whether the contract between C and T was void or not.

----Whether the contract between C and T was illegal.

Reasoning:

a. Legal principles: Conflict of law/ applicable law ---- the law of New York or the Netherlands?

The court supports Tarbert’s contention that the law of N.Y. is applicable in this case according to the rule of the closest relationship.

b. The contract between Tarbert and Cometal in this case is illegal.The contract is illegal because of the existence of the false certificate of origin.

c. Separable or inseparable part

(1) Maxims / public policy / universal law

(2) Plaintiff maintains that illegality is “non-essential” and “separable”. Therefore, only portion of the contract is unenforceable.

The court’s opinion is that illegality is an essential and inseparable ingredient of the