Wednesday, October 10, 2012

This Year's Vis Problem: &%#$^* Yet Again

Jim Chen has invited me to post a note from time to time on the International Commercial Arbitration Moot. This is my tenth year of coaching, along with Tom Hurst and now George Dawson, the Florida team  What follows are my initial impressions of this year's problem. Please feel free to disagree, clarify, whatever. I do not regard myself as a CISG scholar and, as you know, the problems are always composed of mind-numbing combinations of dates, amounts, exhibits, statements, and issues.

 Following the normal formula there are procedural issues and substantive ones. This year the procedural issues seem a bit less significant than in the past but no less sticky. One deals with the use of a statement by an unavailable party. Another has to do with the consequences of a possible Article 96 reservation and its application to a modification.

For Vis veterans the principle substantive issue will be familiar. Remember the wine problem  from a few years ago?  The wine may or may not have been  laced with anti freeze or something related to antifreeze. Or maybe antifreeze was only in the trucks transporting the wine. In that case, problems came up when the possibility was publicized and the buyer decided it was not what was promised.

Now we have an ethically minded buyer who purchases polo shirts for resale but discovers they may or may not have been produced with child labor. This leads to a claim that the shirts are unfit and that a fundamental breach has occurred. Like the wine problem from a few years ago, there is actually nothing physically "wrong" with the shirts except that now, with the bad publicity, they cannot be sold as profitably and without  damage to the reputation of the retailer and its parent company.

It's all rather nasty and definitely fun. The problems reveal themselves over the months before the competition.  Each day the students and the teachers seem to find a new twist or theory. It's additive.

(The shirts in the pic are Fred Perry.  As far as I know the are manufactured by non child labor and by vegetarians who recycle.)

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