How does the cookie crumble? legal costs under a uniform interpretation of the United Nations Convention on Contracts for the International Sale of Goods

A family owned Mexican company, Zapata Hermanos Sucesores, S.A. ("Zapata"), sold approximately US$950,000 worth of cookie tins over a period of four years to the Maurice Lenell Cooky Company ("Lenell"), an American company that produced baked goods. Lenell failed to pay Zapata for the cookie tins so Zapata sought legal advice and instituted legal proceedings against Lenell for breach of contract in the Federal District Court of Illinios. The cookie tin sale contracts were governed by the United Nations Convention on Contracts for the International Sale of Goods ("CISG"). Zapata succeeded in its Federal District Court claim and, as part of the Court's order, was awarded US$550,000 as foreseeable loss under Article 74 of the CISG, being the amount of legal fees incurred by Zapata in bringing proceedings against Lenell. On appeal to the Federal Appellate Court, however, the award of legal fees was overturned. The parties now find themselves contesting a leave application to appeal to the Supreme Court of the United States of America in a much anticipated debate over who should pay the lawyers.

Harmonisation and the United Nations Convention on Contracts for the International Sale of Goods

After many years of negotiation, the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) came into force in 1988. Today, 62 states have adopted the CISG. Together these countries account for over two-thirds of all world trade.2 On this basis alone, the CISG is an outstanding success in the legal harmonisation of the law governing the international sale of goods. However, the CISG has its critics and much comment has been made on the failure of the CISG to achieve its goal of promoting international trade through a body of uniform rules.The primary motivation driving the push for a harmonised law on the international sale of goods is economic: a harmonised law makes it easier and more efficient for the business person to sell and buy goods across state borders. However, the engine driving the push for harmonisation is political and cultural; and the task of creating the harmonised law belongs to the diplomat.3 A study of the CISG demonstrates that the political and cultural demands on the diplomat also act as shackles that restrain the achievement of a harmonised law.This paper will consider the CISG and discuss the constraints on treaty making as a mechanism for legal harmonisation. Part one discusses the constraints faced when creating a uniform text.Part two discusses the problems with the text of the CISG that result from the negotiation process. Finally, part three discusses the constraints faced in maintaining the uniformity of the CISG.

What's in a name? Software, digital products, and the sale of goods

This article addresses how the advent of trade in computer software, and nowdigital products, has challenged the application of sales law and consumer law.It addresses the law of three jurisdictions: the United Kingdom (‘UK’),Australia and New Zealand. Often, applying the ‘goods’ criterion in theseregimes will be uncontroversial. Nevertheless, modern market conditions havecreated a need to move beyond the existing question of whether softwareconstitutes ‘goods’, and instead to ask how a range of different types of digitalproducts fit into sales law and consumer law regimes. Many legal systems havesettled the software-as-goods question. However, software is only one kind ofcommonly traded digital product. This article argues that other types of digitalproducts — including apps, firmware, digital music and electronic books —should be treated the same way as software by sales law and consumer lawregimes. Recent developments in UK consumer law are also analysed as aninnovative model for reform regarding party rights and obligations in the supplyof digital products.

Woolgrowers, brokers and the debate over the sale of the Australian wool clip, 1920-1925

Prior to the First World War, the selling of the Australian wool clip rested firmly in the hands of the large woolbroking firms. An agreement between the British and Australian governments during the war saw many of the wool-selling functions of broking firms taken over by the Central Wool Committee. At the conclusion of hostilities, brokers moved to regain their role in the market. However, market conditions had changed. On an international level, traditional trading relationships had broken down, leaving commodity markets unstable and prices unpredictable. On a local level, woolgrowers had benefited from the wartime orderly marketing scheme and the high price guaranteed by the British government for their wool clip. As a result, they had begun to demand a greater role in the selling arrangements of their clip. This paper investigates the debates over the sale of the wool clip in the 1920s and how woolbrokers and growers eventually arrived at an understanding as to the manner in which the market should operate.

New dog, old tricks : solving a conflict of laws problem in CISG arbitrations

Parties to international sale of goods transactions often exercise their rights to choose a governing law and refer disputes to arbitration . Where their choice is incomplete, as is the case where the contracts for the International Sale of Goods (CISG) is chosen, complex conflict of laws problems can arise, including disputes over the governing limitation period. While such disputes are traditionally resolved using conflict of laws methodologies, this article argues a superior solution can be achieved through procedural late. Through a simple discretion, arbitral tribunals may apply the limitation period from either the International Institute for the Unification of Private Law (UNIDROIT) Principles 2004 or the UN Limitation Period Convention. Such an approach makes determination of the governing limitation period a simpler process, allowing parties to focus their attention on what they are really concerned with—the merits.

Monitoring and motivating outworkers : the case of the AMP and the sale of industrial life insurance 1905-1940

The development of labor management practices in the financial services sector provides an interesting insight into how problems associated with agency issues were overcome. Within financial institutions and other white collar occupations, the use of internal labor markets emerged as an effective means of both controlling and motivating employees. However such management techniques were only effective in cases where work tasks could be internalized. The business of some types of organizations necessitated a division of work tasks between those undertaken within the office and those undertaken outside the office. The management and sale of insurance products is a case in point. This paper explores the development of processes implemented to resolve a specific type of labor management issue, namely the control of workers under conditions of uncertainty. Using the example of the Australian Mutual Provident (Australia's largest life insurer), it analyses how and why particular work relations procedures were developed.

In defence of the CISG

In this article, the authors respond to certain criticisms made against the 1980 Vienna Convention on Contracts for the International Sale of Goods (the ‘CISG’) and explain what they perceive as the shortcomings of, and impediments to, a particular model of a proposed new global code. A goal of both the CISG and the proposed global code is to create an environment which promotes international trade. Predictability in the law is a fundamental element to achieve such an environment. The CISG has been criticised as failing to provide such predictability. It has been suggested that it has not been uniformly interpreted, contains internal inconsistencies and allows countries to establish varying mini-codes. While there may be some merit in some of these criticisms there is also much that is overstated and wrong. The CISG may not be a perfect instrument. However, it has been widely accepted and that alone makes it a strong basis from which to develop. A global code applied with absolute uniformity throughout the world might provide predictability. However, such a uniform law is unrealistic and, in any event, undesirable. The authors propose a more realistic solution. The law should be the framework upon which individually nuanced contracts could be built. Predictability is obtained by developing and establishing avenues of communication. It is also obtained by developing and establishing means of explaining and understanding the concepts upon which the framework has been built. The CISG allows for all of this.

Medical travel and the sale of human biological materials: suggestions for ethical policy development

The international medical travel industry includes patients seeking to access human biological materials (HBM) including gametes, organs and stem cells. Of the various niche markets, ‘transplant tourism’ has earned global condemnation and efforts to eradicate cross-border trade in organs, while other markets continue to expand. This article reviews the ethical issues raised by medical travel for HBM, in particular those concerning trade in HBM. It argues that a more consistent approach to the regulation of cross-border trade is imperative to ensure that the perils of ‘transplant tourism’ are not replicated in other markets. In addition, it discusses the role of the self-sufficiency model in assisting the development of ethical and practical policies regarding the procurement and use of human biological materials at a national level, thereby minimizing demand for medical travel.

Contribution of objective and subjective attributes to the variation in the whiteness and brightness of commercial mohair sale lots

Colour properties are measured prior to the sale of merino wool as they are of commercial importance when greasy wool is sold and when wool is dyed. With the paucity of knowledge of the colour properties of commercial mohair, this study aimed to identify and quantify the factors affecting the brightness (Y) and yellowness (Y-Z) values of commercial lots of Australian mohair. The research database comprised 520 sale lots (>500,000 kg mohair), which had tristimulus tests, and was sold during the period 2001–2009. Mohair was subjectively classed and sale lots objectively tested using international standard methods for mean fibre diameter (MFD, μm), fibre diameter coefficient of variation (%), International Wool Testing Organization (IWTO) clean wool base (IWTO yield, %w/w), vegetable matter (VM, %w/w) and the tristimulus values X, Y and Z (T units). The tristimulus values of Australian mohair were affected by the objective measurements of MFD, VM%, the subjective classing of stain, cotting, kemp and length and by the year and selling season. Variation in Y was more easily predicted with 90.5% of variance explained by the best model compared with variation in Y-Z, where the best model explained 51.6% of the total variance. Visually assessed properties of the mohair were very important in separating mohair of different Y properties, accounting for almost 80% of the total variance, but were far less important in accounting for the variance in Y-Z, accounting for about 9–10% of the total variance. The most important effects on the Y of mohair were associated with subjectively determined fault categories determined before the sale of mohair. In particular, stain fault explained about two-thirds of the variance in brightness of mohair sale lots. Stained mohair had much lower brightness than mohair free of stain but stain fault explained very little of the variation in yellowness of mohair sale lots. The extent of the differences in tristimulus values between seasons and years were not large for Y but were more important for yellowness (Y-Z), and these effects are likely to be of commercial importance. Generally, brightness decreased and yellowness increased as MFD increased up to about 30 μm. Both cotting and kemp fault were associated with reduced brightness and increased yellowness. The effects of VM% on tristimulus values were small. IWTO yield was associated with changes in tristimulus values, but in the best model, IWTO yield was not a significant determinant. This study indicates that commercial Australian fleece (nonfaulted) mohair was essentially white. Faulted mohair on the other hand exhibited poorer colour characteristics. The mohair subjectively identified as stained prior to sale comprised all the mohair which would be regarded as not white, and this investigation indicates that the effect of staining is on the brightness of mohair rather than the Y-Z measurement. Unlike the situation with merino wool, there was little relationship between the naturally occurring contaminants, as measured by the IWTO washing yield, and either Y or Y-Z.