Pháp luật đại cương FTU - Đề cương ôn tập + Case study

1. In countries of Common law, liquidated damages ( L/D) is commonly applied to prevent breaching acts of involved contracting parties. Liquidated damages clause Including a liquidated damages (LD) clause in a commercial contract is a popular way of dealing with the possibility of breach. The essence of an LD clause is that a party in breach of its obligations under a contract is obliged, by that contract, to pay a particular sum by way of compensation for that breach. The sum is fixed in advance and written into the contract. The courts recognise the advantages of these clauses for both parties. These, combined with the general principle of freedom of contract, have led to a general view on the courts' part that these clauses should be upheld, especially in a commercial context where the parties are seen as free to apportion the risks between them. However, an LD clause which constitutes a penalty will not be enforceable. A number of pointers have emerged from the case law on the topic which must be taken into account when considering this issue. There are also a number of drafting points to follow which will help any such clause to be upheld. LD clauses: a practical remedy with numerous advantages LD clauses have much to recommend them in the commercial context. The most important element of such a clause is that the sum specified is payable once the breach occurs without the need to wait for the loss to crystallise. The injured party is spared the time and expense of a common law action for damages for breach of contract. Neither is it under any obligation to mitigate as it would be in an ordinary claim. Remoteness of damage can also be an issue in a contractual damages claim. However, where the nonbreaching party can rely on an LD clause, questions of remoteness do not arise. This in turn means that potential problems of under-compensation for the injured party may well be avoided, especially in situations where significant consequential or idiosyncratic losses result from the breach. Further, knowing in advance their potential exposure on a breach brings an extra degree of certainty to the parties and also, perhaps, to their insurers. Sensible LD provisions (for example the service credit regime built into many outsourcing contracts) can be a practical and workable method of dealing with minor breaches throughout a long-term contract; one advantage of this is that the parties often find it possible to continue their commercial relationship going forward despite an element of past poor performance. 2. Business activities in Vietnam must be consistent with ethical values established and recognized We are living in an era of globalization and deep international integration, in which economies and businesses around the world are simultaneously cooperating and competing fiercely. In particular, Vietnamese enterprises are facing great opportunities as well as challenges, requiring to improve their competitiveness not only by capital, business strategy, technology, productivity, quality, efficiency, product design but also by prestige, brand and business ethics. The common perception in the world today is that the competition between businesses in the environment of globalization and international integration is cultural competition, in which business ethics is a significant factor. decision. So, what is business ethics? Many countries around the world have long focused on business ethics. Business ethics is an integral and integral part of social ethics in general. There are many definitions of business ethics, but through the synthesis of opinions at conferences, in the press and in society, it guide, regulate and control behavior in order to ensure standards and honesty in the activities of business entities. As a form of professional ethics with high specificity because it is associated with economic interests, business ethics is an ethical category that is applied to business activities but it is not separate from the foundation of business ethics. It is a common social morality and is governed by a system of values and social moral standards. 3. CISG 1980 WILL BE EXCLUDED IN CASE THE INVOLVED PARTIES AGREE TO CHOOSE VietNamese law as governing law for the International sale of good contracts. The Vienna Convention on Contracts for the International Sale of Goods Contract or the CISG 1980 is often considered to be a great success in harmonizing private commercial laws. However, there is a common scene that the parties of international sales usually agree to exclude the application of the Convention and forgo the potential benefits it can bring about. Taking into account of the fact that Vietnam has become a member state of the Convention since the beginning of 2017, without proper equipment on the knowledge regarding the issue, there is a high chance that our enterprises will follow the footsteps of the predecessors to constantly opt out of the Convention without any consideration and deprive themselves of the advantages accompanying with it. Hence, this article aims to look deeply into the reasons behind the opting out decision of the enterprises via examining the CISG exclusion situation in some countries and conducting in-depth analysis regarding the problem. Subjective exclusion from the choice of enterprises and lawyers The exclusion of the CISG 1980 Exclusion or opting out of the CISG refers to the case when the Convention and its respective articles are excluded from governing the Contract between relevant parties, including the settlement of the potential dispute by courts or tribunals. Generally, the exclusion can be categorized into 03 main types: Automatic exclusion of the CISG 1980: Believed to have a highly innovative content compared to its predecessors, the CISG still possesses many drawbacks hindering it from covering all aspects of international transactions and has to be automatically excluded by the Convention content per se. The first one is the limited substantive sphere of application. For example, there are several types of contracts for international sale of goods which the CISG cannot govern as presented in Article 2 of the Convention. The second comes from its limited international sphere of application. This characteristic is illustrated in Article 1(1) stipulating only parties whose places of business are in different States can apply the Convention to their sale of goods contracts. In other words, only the contracts for the sales of goods concluded between parties who, at the time of the contract establishment, have their respective place of business or habitual residence (in case of absence of place of business) in different States are subject to such Convention. Exclusion of the CISG 1980 by enterprises: The exclusion of the CISG 1980 by enterprises is a result of the Article 6 of the Convention. When drawing up the CISG, considering its automatic application nature and the divergence in legal culture of each country, one solution provided by the drafters is the freedom in subjectively excluding the Convention by contracting parties, which is reflected in Article 6. Such stipulation entitles parties to the freedom in the choice of law. Article 6 does not impose on a specific \ Exclusion of the CISG 1980 by juridical body: As a dispute settlement body, courts, tribunals and arbitrators always require a specific applicable law to base on when resolving disputes between parties. The accurate identification of the applicable law is the first step in every settlement process as such law affects the final decision. The exclusion of the CISG by the juridical bodies is usually the result of such identification where the judges or board of arbitrators decide that CISG is not the applicable law of the contract and hence, does not govern the dispute settlement process. One problem faced by the jurisdiction body is whether or not the CISG can be excluded. This is a consequence of the requirement by the Convention to take into account not only the superficial content of the Contract but also the implicit intentions of parties when they came into the Contract as stipulated in Article 8. Even if the court finds that such a Contract is governed by the CISG due to the nature of the sales and the location of pertinent parties and there is no explicit exclusion of the Convention stated in the agreement, the analysis of determining the applicable law is yet to fulfill. At that point, it can only be temporarily concluded that CISG will govern such an agreement. And as the Convention is the applicable law at that point, the court has to rely on Article 8 to continue the analysis. Article 8 requires the court to go beyond four corners of the 4.Under VietNam Commercial Law 2005, commodity and quantity are fundamental clauses of an IS of goods contract. A contract may contain the following contents: (a) Subject matter of the contract; (b) Quantity and quality; (c) Price and method of payment; (d) Time-limit, place and method of performing the contract; (dd) Rights and obligations of the parties; (e) Liability for breach of contract; (g) Method of resolving disputes. 1 So the next part I gonna introduce to you about the 1st disadvantage of having unclear fundamental clauses in VCL 2005, it is Dodge the law ( bend the law). So why it is easy for people to beand the law in this case, here is some key words, the 1st one is GAP, LTM 2005 omits a lot of important regulations related to commercial activities in practice, or if any, these regulations are not consistent( inadequacy) with the provisions of specialized laws and guiding documents. And these two of things cause a lot of limitation of the VCL 2005, does not guarantee reasonableness and/or feasibility. Let take a look at civli code 2015, we also have 6 fundamental elments in a commercial contract: 1= name of goods Civile code 2015 is more clearly ⇨ So when we carry out commercial activities, we need to compare with the Civil Code 2015. This makes the existence of the 2005 LTM unnecessary, because the overlapping( inadequacy) provisions of the VCL 2005 which complicate the procedure of applying the law to private relationships, especially to the Civil Code. 2. Let consider this case: Contents: Plaintiff – TDD LOGISTICS GMBH and Defendant – WIN LINES Vietnam Company signed a contract of lading to transport Containers from Ho Chi Minh City to Prague. (VCL as a governing law) When requiring to pay the shipping cost of 6,502.60 USD( six thousand five hundred two point six USD) , but the Respondent only paid 1,000 USD, the Plaintiff sued. Plaintiff requests: Forcing Defendant Win Company to pay the cost of shipping Container. Payments include transportation costs of USD 5,502.60, interest on late payment of 8% and other costs related to the case. The appellate level said: According to the bill of lading, it only shows the transportation of tea containers from Ho Chi Minh City to Hamburg by sea, and where the goods are transported from Hamburg to, it is not shown. There is no an agreement on the shipping distance as well as how much the freight is for the shipping contract. ⇨The unclear in the VCL 2005 cause the inconsistency and limitation in commercial activities in which the invonled parties may be at a disadvantage point ( loss),some traders can make use of loopholes in law to earn profit. => slide 8 3. “LMT 2005 omits a lot of important regulations related to commercial activities in practice, or if so, these regulations are not consistent with the provisions of specialized laws……” => slide 11 “subjects in business and commercial relationships are confused when applying and make it difficult for competent authorities to resolve disputes and conflicts in the provisions of the law, which will create loopholes for many people to take advantage of the law.” => slide 11 5. The arbitral award shall be final and legally enforced. an arbitral award shall be final and shall be of full force and effect as from the