Trade Sanctions and International Sales

Name: Trade Sanctions and International Sales | An Inquiry into International Arbitration and Commercial Litigation
Brand: Kluwer Law International
Price: 281.99 EUR
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An Inquiry into International Arbitration and Commercial Litigation

MercÃ Silveira(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 15. September 2014

440 Seiten

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978-90-411-5403-3 (ISBN)

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Inhalt

Cover
Half Title Page
Title Page
Copyright Page
Dedication
Table of Contents
Foreword
List of Figures
List of Abbreviations
Acknowledgments
Introduction
PART I Sanctions and Contracts Considered
CHAPTER 1 International Trade Sanctions
§1.01 MULTILATERAL AND UNILATERAL MEASURES
§1.02 TRADE-RELATED MEASURES
§1.03 COERCIVE, SYMBOLIC, AND PUNITIVE MEASURES
CHAPTER 2 International Sales Contracts
§2.01 CONTRACTS FALLING WITHIN THE SCOPE OF A TRADE SANCTION
§2.02 CONTRACTS GOVERNED BY THE CISG
PART II Trade Sanctions as Statutes that May Be Taken into Account for the Resolution of a Contractual Dispute
CHAPTER 3 Characterization of Trade Sanctions in a Private Law Perspective
§3.01 TRADITIONAL APPROACH: TRADE SANCTION AS A DATUM
[A] Overview
[B] Rationale and Weaknesses
§3.02 PROPOSED APPROACH: TRADE SANCTION AS A LEGAL NORM
[A] Introduction to Overriding Mandatory Rules
[1] Nature
[2] Normative Content
[B] Trade Sanctions as Overriding Mandatory Rules
[C] Multilateral Trade Sanctions as Data in Exceptional Circumstances
CHAPTER 4 Authority of Domestic Courts and Arbitral Tribunals to Give Effect to Trade Sanctions
§4.01 CONTRACTUAL DISPUTES BEFORE DOMESTIC COURTS
[A] Trade Sanctions Imposed by the State of the Forum
[B] Trade Sanctions Imposed by the State of the Applicable Law
[1] Irrelevance of the Overridingly Mandatory Characterization of a Trade Sanction
[2] Relevance of the Fact that a Trade Sanction Serves Public Interests
[C] Trade Sanctions Imposed by Another State
§4.02 CONTRACTUAL DISPUTES BEFORE ARBITRAL TRIBUNALS
[A] General Considerations
[1] Arbitrability of Disputes Involving Overriding Mandatory Rules Serving Public Interests
[2] Absence of Forum in Arbitral Procedures
[3] Arbitrators' Duty to State the Law
[B] Trade Sanctions Imposed by the State of the Applicable Law
[1] General Findings
[2] Implications of a Choice of Law by the Arbitrators
[C] Trade Sanctions Imposed by Another State
[1] General Findings
[2] Purported Relevance of the Parties' Legitimate Expectations
[3] Sanctions Imposed by the State of the Seat of the Arbitration and Sanctions Imposed by States where Enforcement of the Award May Possibly Be Sought
[4] Implications of a Choice of Law by the Parties
[5] Implications of a Choice of Law by the Arbitral Tribunal
CHAPTER 5 Circumstances in Which a Trade Sanction May Be Given Effect
§5.01 TRADE SANCTION TAKEN INTO ACCOUNT AS AN OVERRIDING MANDATORY RULE OF THE FORUM STATE
§5.02 TRADE SANCTION TAKEN INTO ACCOUNT AS AN OVERRIDING MANDATORY RULE EXTERNAL TO THE APPLICABLE LAW
[A] Conditions Overview
[1] Overriding Mandatory Rule as an Appropriate Means of Achieving a Legitimate Purpose
[a] "Application-Worthiness" Test
[b] System of Reference
[2] Existence of a Close Connection between the Contractual Dispute and the Enacting State
[3] Prevalence of the Benefits of a Decision to Give Effect to an Overriding Mandatory Rule over Those of a Decision to Disregard It
[B] Trade Sanctions in General
[1] Legitimacy, Necessity, and Proportionality of Trade Sanctions
[a] Multilateral Sanctions
[b] Unilateral Sanctions
[2] Connection between the Contractual Dispute and the Sanctioning State
[3] Consequences of a Decision to Give Effect to a Sanction versus Consequences of a Decision to Disregard It
[C] Extraterritorial Trade Sanctions
[1] Legitimacy and Efficiency
[2] Close Connection Requirement between the Disputed Contract and the Sanctioning State
[3] Consequences of a Decision to Give Effect to a Sanction versus Consequences of a Decision to Disregard It
§5.03 TRADE SANCTION TAKEN INTO ACCOUNT AS AN ELEMENT OF THE APPLICABLE LAW
[A] Exception of Public Policy
[1] Principles of International Public Policy of the Forum
[2] Principles of Transnational Public Policy
[B] Relationship between the Mechanism of the Exception of Public Policy and the Application of Overriding Mandatory Rules
[C] Trade Sanctions to Be Disregarded on Grounds of Conflict with Principles of Public Policy
CHAPTER 6 Relevance of the Lex Contractus
PART III Trade Sanction as a Ground for Exemption from Liability for Non-performance
CHAPTER 7 Trade Sanctions as Legal Impediments to Performance
§7.01 IMPEDIMENT BEYOND THE DEFAULTING PARTY'S CONTROL
[A] Occurrence Making Performance Impossible or Unreasonably Difficult
[1] Trade Sanctions
[2] Threats of Penalties and Measures of Enforcement of a Trade Sanction
[B] Occurrence beyond the Obligor's Sphere of Risks and Responsibilities
[1] The Obligor's Sphere of Risks and Responsibilities
[2] Impediment to the Obligation to Deliver or to Take Delivery of the Goods
[a] Trade Sanction Prohibiting Performance by the Buyer or the Seller
[b] Trade Sanction Prohibiting Performance by the Seller's Supplier
[3] Impediment to the Obligation to Make a Payment
§7.02 UNFORESEEABILITY OF THE IMPEDIMENT
[A] Relevance of the Foreseeability Test and Standard of Reasonableness
[B] Foreseeability of Future Trade Sanctions and Risk Assumption
[1] Trade Sanctions Prohibiting the Performance of an Obligation
[2] Trade Sanctions Subjecting Performance to a Regime of Authorization
§7.03 UNAVOIDABILITY AND INSURMOUNTABILITY OF THE IMPEDIMENT AND OF ITS CONSEQUENCES
[A] Unavoidability and Insurmountability in General
[B] Unavoidability and Insurmountability of Trade Sanctions
[1] Trade Sanctions Prohibiting the Performance of an Obligation
[2] Trade Sanctions Subjecting Performance to a Regime of Authorization
§7.04 CAUSALITY
[A] Non-Performance, Delayed or Defective Performance
[B] Causal Chain between the Impediment and the Obligor's Failure to Perform
§7.05 DUTY TO GIVE NOTICE
CHAPTER 8 Rights and Obligations of the Parties If the Obligor Is Exempted from Liability for Non-performance
§8.01 EXEMPTION FROM LIABILITY FOR DAMAGES
§8.02 SUSPENSION OF THE OBLIGATION TO PERFORM IN KIND DURING THE TERM OF THE SANCTION
§8.03 REMEDIES AVAILABLE TO THE AGGRIEVED PARTY
[A] Right to Declare the Contract Partially or Totally Avoided
[1] In General
[2] If the Sanction Affects Only Part of the Contract
[B] Right to Declare a Price Reduction
[1] If the Sanction Affects All or an Indivisible Portion of the Goods
[2] If the Sanction Affects Part of the Goods and the Obligor's Performance Is Divisible
[C] Right to Collect Interest
§8.04 FATE OF THE CONTRACT WHILE THE SANCTION IS IN FORCE AND AFTER IT IS LIFTED
CHAPTER 9 Rights of the Obligee If the Obligor Delivers a Substitute to Avoid the Prohibition
§9.01 NO RIGHT TO DECLARE THE CONTRACT AVOIDED
§9.02 RIGHT TO DECLARE A PRICE REDUCTION
PART IV Risk of Penalty for Breach of a Sanction as a Ground for Renegotiation or a Court-Ordered Adaptation of the Contract
CHAPTER 10 No Exemption Possible on Grounds of Increased Onerousness
§10.01 UNAFFORDABILITY IN GENERAL AS A GROUND FOR EXEMPTION
§10.02 INSUFFICIENCY OF THE RISK OF PENALTY ALONE FOR A FINDING OF EXEMPTION
CHAPTER 11 Adaptation of the Contract on Grounds of Hardship
§11.01 HARDSHIP
[A] In General
[1] Fundamental Disruption of the Contractual Equilibrium
[2] Renegotiation, Court-Ordered Adaptation or Termination of the Contract
[B] Under the CISG
[1] Existence of a Praeter Legem Gap
[2] Renegotiation or Court-Ordered Adaptation of the Contract
§11.02 THREATS OF PENALTY FOR BREACH OF A SANCTION AS HARDSHIP
[A] Right to Seek Renegotiation or a Court-Ordered Adaptation of the Contract
[B] Threshold Test
CHAPTER 12 Part III Revisited in the Light of Part IV: Remedies Available If the Cost of Avoiding a Trade Sanction Is Excessive
Conclusions
Bibliography
Table of Arbitral Awards
Table of Court Decisions
Index
Back Cover

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