International Commercial Law & Practice Unit 9 – Assignment Scenario You are a commercial lawyer in the international law firm Mountfields LLP. You are based in their offices in the City of London. Your senior partner, Richard Benson, has been called away on urgent business, and has left you the attached email which sets out three pieces of work which must be completed before his return. Instructions Your task is to complete the three pieces of work mentioned in Richard Benson’s email (see Attachment 1). In doing so, you should comply with the following task instructions, which are grouped according to the relevant request: Task 1 Research a case and prepare a PowerPoint presentation plus script for use at a client seminar. You should research the following Supreme Court case in order to give your advice. It is available on the LexisLibrary database which you can access via the Library website. RTS Flexible Systems Limited v Molkerei Alois Müller Gmbh & Co KG [2010] UKSC 14 (10th March Judgment) Make sure you base your presentation on the Supreme Court case, and not earlier hearings, such as the High Court or Court of Appeal hearings. Do not research any other cases in preparing your presentation. The presentation must: (a) be composed of a series of 6 - 8 slides; (b) include a script for each slide which could be read out at the seminar. This must appear in the “Notes” section underneath each slide. As a guide, you should aim not to exceed 200 words for any individual slide; (c) be of a length which could be presented to a client seminar within a period of 25 minutes. If you do not have Microsoft PowerPoint on your computer, submit your presentation as a Word document (or other word processed document). Identify clearly which wording would be on slides, and which wording is your associated script. This will not affect your mark. 001910 Page 2 of 7 © The University of Law Limited 2016 Task 2 Research a case and prepare a report You should research the following European Court of Justice case in order to write your report. It is available on the LexisLibrary database. Wood Floor Solutions Andreas Domberger GmbH v Silva Trade SA (case C-19/09) [2010] All ER (D) 130 (Mar) Do not research any other cases in preparing your report. Your report should be in memorandum format and should be between 800 and 1200 words in length. It should adopt the following structure:  Brief summary of the facts of the case,  Summary of the legal issues, including any relevant legislation,  Summary of the decision of the court, with reasoning, and  Effect on clients who are agents. N.B. Your name must NOT appear anywhere on your answer. Please do NOT use your own name for the report. Instead, you should use ‘Lawyer’. Task 3 Amend exemption clauses (use separate Word document provided) Your task is to amend the draft clauses so that they comply with the client’s instructions, and annotate them to show to what extent they depart from The United Nations Convention on Contracts for the International Sale of Goods. In doing so, you should adhere to the following: (a) The draft is at present 352 words in length. Your completed draft should be no more than 500 words in length (excluding comments). The draft has been provided in Word format on Elite to enable you to amend it as instructed. (b) Your additions must be in bold. Any deletions should be made by using strikethrough (highlight the relevant wording, right click on your mouse, select font, and then select ‘strikethough’). For example, the sentence ‘Copy write is protected’ might be amended to ‘Copy write Copyright is protected’. (c) Using the ‘Comment’ tool in Word, you should also add a brief comment, explaining why you have made any amendments. (Click on the Review tab, highlight the relevant amendment and click on ‘New Comment’, then type your comment in the Comment box which appears) N.B. Your name must NOT appear anywhere on your answer. Before you start, you MUST remove your name from the comments balloons. (Click on the ‘Change Tracking Options’ arrow below the ‘Reviewing Pane’, and follow the instructions below – see Attachment 3.) 001910 Page 3 of 7 © The University of Law Limited 2016 ATTACHMENT 1 E-mail From: [email protected] Sent: [ ] To: [you]@Mountfields.com Subject: My absence I have received a request to fly to Dubai on an urgent matter. Initial indications are that I will be there for at least three weeks, but it is possible that the matter could take longer to resolve. In my absence I wonder if you could attend to three pieces of work: 1. Prepare a PowerPoint and script for a client seminar I am due to give a client seminar to a client who regularly commences work on a “subject to contract” basis. The seminar is to be on the impact of a case on such clauses: RTS Flexible Systems Limited v Molkerei Alois Müller Gmbh & Co KG [2010] UKSC 14 (10th March Judgment), and should include practical tips for clients to avoid the problems that this case highlights. I have spoken to their CEO to explain that I may have to delay giving the seminar, but I am likely to have to give it as soon as I return. To enable me to do this, could you please prepare a PowerPoint presentation and script for me? 2. Report on a case I have several clients who are commercial agents. I saw a very brief reference to an ECJ case with which I am not familiar. I would like you to take a look at, and summarise for me: Wood Floor Solutions v Silva Trade. Write a report to let me know what the case is about and how it might affect our commercial agent clients. 3. Amend exclusion clauses One of my regular clients, Yamire Ltd, is to enter into a supply agreement to buy engine parts from a Spanish company, Murça S.L. The contract is to be subject to The United Nations Convention on the International Sale of Goods (‘CISG’). Murça’s lawyers have sent through a draft agreement for our consideration and I am particularly concerned by the exclusion clauses (see Attachment 2), as they appear to be stronger than had been agreed. Below is a list of the exclusions which the client agreed to: 1. If parts are defective, Murca will not be liable provided that it replaces the parts within 15 days; 2. Consequential loss damages are to be limited to a maximum of £100,000; 001910 Page 4 of 7 © The University of Law Limited 2016 3. Murça will not be liable if they fail to deliver for normal force majeure reasons - either party will be able to terminate 4 months after notification of the problem by Murça, with a full refund of the price to be given (with interest). Could you amend the clauses so that they comply with this list? Please also annotate it with an explanation of your amendments. As it has been agreed that the contract is to be subject to the CISG, please annotate the clauses so that the client is aware to what extent the clauses depart from the Convention. 001910 Page 5 of 7 © The University of Law Limited 2016 ATTACHMENT 2 9. WARRANTIES AND LIABILITY 9.1 The Buyer shall carefully examine the Goods immediately on delivery of them and shall notify the Seller in writing of any defects reasonably discoverable on careful examination. The Seller must receive this notification within 7 days commencing with the day of delivery to the Buyer. In the absence of such notification, the Seller excludes all liability in respect of any reasonably discoverable defect. 9.2 Subject to Clause 9.1, where any claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, repair the Goods, or refund to the Buyer the price of the Goods (or the proportionate part of the price) but the Seller shall have no further liability to the Buyer. 9.3 The Seller shall not be liable for any consequential or indirect loss suffered by the Buyer, whether this loss arises from breach of a duty in contract or tort or in any other way (including loss arising from the Seller’s negligence). Non-exhaustive illustrations of consequential or indirect loss would be: 9.3.1 loss of profits; 9.3.2 loss of contracts; 9.3.3 damage to property of the Buyer or anyone else; and 9.3.4 personal injury to the Buyer or anyone else (but only so far as such injury is not caused by the Seller’s negligence). 9.4 The Seller shall not be liable for any failure to deliver the Goods arising from circumstances outside the Seller’s control as follows: 9.4.1 Non-exhaustive illustrations of circumstances outside the Seller’s control include act of God, war, riots, explosion, abnormal weather conditions, fire, flood, Government action, strikes, lockouts, delay by suppliers, accidents and shortage of materials, labour or manufacturing facilities and price variations in raw materials. 9.4.2 If the Seller is prevented from delivering in the above circumstances, it shall notify the Buyer of that fact in writing within 3 months commencing with the day on which the circumstances arise. 001910 Page 6 of 7 © The University of Law Limited 2016 ATTACHMENT 3 Instructions for changing a name in the ‘Comments’ tool on Word (Note: these instructions are for Windows 8. Other versions may vary) A new window will appear. Click on ‘Change User Name’ In the new window which appears, change the User Name to ‘Lawyer’ and the initials to L.