《法律英语教学资料》7、MMI v IMS.ppt

* Medical Marking International (MMI) Internazionale Medico Scientifica (IMS) Entering into an exclusive licensing agreement (MMI) (IMS) Contract The equipment Be seized Because It did not comply with U.S. safety regulations. Responsibility (MMI) (IMS) ? Arbitration (MMI) (IMS) $357,000 General issue Whether the court should enforce or overrule the arbitration decision (award)? Specific issues 1.Whether the arbitrators misapplied the CISG and refused to follow the German Supreme Court case? 2 .Whether the IMS made a fundamental breach and MMI was entitled to avoid the contract? Legal issue 1. whether the arbitrators misapplied the CISG and refused to follow the German Supreme Court case? IMS Court The arbitrators “exceeded their powers”: ①Misapplied the CISG ②Refused to follow the German Supreme Court case Neither contrary to public policy nor in manifest disregarded of international sales law. 1.The arbitrators have carefully considered that decision of the German Supreme Court case. 2.Found this case fit the exception but not the rule as articulated in that decision. IMS Court 1. the breach of IMS was not fundamental ; 2.MMI was not entitled to avoid the contract . 1.According to the first reasoning … 2.Under CISG Article 25, “A breach is fundamental when it results in such detriment to he party that he or she is substantially deprived of what he or she is entitled to expect under the contract ,unless the party in breach did not foresee such a result ” . IMS’s breach was fundamental. Judged by Article 49: “ The buyer may declare the contract avoided if the failure by the seller to perform any of his obligations under the contract or this Convention amount to a fundamental breach of contract ”. MMI has the right to avoid the contract. Legal issue 2--whether the IMS made a fundamental breach? In this case, the arbitration had followed the German case, including the general rule and its exceptions.