LAW20007 International Commercial Law - PDF

**LAW20007: International Commercial Law** **WEEK 1: The role of law in international trade regulation and administration** This week, we focus on the essential elements of international commercial law, which governs global business transactions. International commerce involves multiple jurisdictions, making it more complex and riskier than domestic trade. Understanding these legal structures is crucial for establishing predictable business relationships across borders. Central to international commercial law are contracts that define the rights and obligations of the parties involved. These include sales agreements, trade terms like INCOTERMS, transportation contracts, financing agreements, and licences for intellectual property rights in various jurisdictions. Dispute resolution mechanisms, whether through courts or international arbitration, are also critical components of these contracts. Some concepts may be familiar from previous studies in contract and commercial law, while others, such as the influence of international treaties and the role of civil law principles in private business transactions, may be new. By the end of this week, you should have a clear understanding of the legal frameworks that support international trade and how they can be used to manage risks in global commerce. Week Objectives: - - - Essential reading: (incomplete add here for podcast) For this module, read: - - - - - - #### Additional resources The following resources will help contextualise and extend your learning: - - - #### Relevant cases The following cases are relevant to this module\'s learning materials: - - - **1.3 Sources of international commercial law and current trends** **[Parlez vous international commercial law?]** ----------------------------------------------------------- International commercial transactions often face unique challenges that complicate trade across borders. A shipment can be delayed due to a mix-up where the wrong container arrives, and the essential documents are in a foreign language. Despite using advanced tracking technology, locating the correct shipment becomes a challenge. The following interactive shows a hypothetical situation that demonstrates the importance of harmonised international commercial laws, which provide the necessary framework to resolve such disputes efficiently, thereby ensuring smooth global trade operations. **[Example: Shipping freighter accident in international trade ]** The sinking of MV Ocean Star **Background:** GlobalMart Ltd, an Australian electronics retailer, enters into a contract with ShenzhenTech Co., a Chinese manufacturer, to purchase 50,000 units of high-end smartwatches. The contract stipulates that the goods are to be shipped from Shanghai to Sydney under the Incoterms® 2020 term FOB (Free on Board) Shanghai. GlobalMart arranges for the transport of the goods on the MV *Ocean Star*, a shipping freighter operated by BlueWave Shipping Co., registered in Panama. The shipment is scheduled to arrive in Sydney on 10th September 2024. **The incident:** On 5th September 2024, during the journey from Shanghai to Sydney, the MV *Ocean Star* encounters severe weather conditions in the South China Sea. Despite the crew\'s best efforts, the ship suffers extensive damage, leading to the vessel taking on water. The crew is forced to abandon the ship, which subsequently sinks, causing the entire cargo, including GlobalMart's shipment, to be lost at sea. **Legal Issues** 1\. Sources of International Business Law: - - 2\. Choice of Law and Conflict of Laws: - - 3\. Legal Regulations in International Trade: - - ### **Discussion points** Reflect on the case study and consider the following questions: - - - - ### **[Consistency, certainty, uniformity, and flexibility]** With the globalisation of trade, there is an increased need for multilateral responses to global issues. International commercial law plays a key role in facilitating trade by balancing predictability with responsiveness to commercial realities. This balance is maintained by recognising trade usages, industry practices like *lex mercatoria*, and the documentation standards set by organisations such as the ICC and CMI. The gradual harmonisation of laws is driven by the practices of international organisations, the widespread use of commercial codes, and the need for effective enforcement mechanisms. **1.4 Trends and sources** **[Current trends in international business law]** -------------------------------------------------------------- With the increasing globalisation of trade, there is a growing need for harmonised legal frameworks that provide consistency and predictability across borders. Organisations such as the WTO, ICC, and UNCITRAL are at the forefront of developing these frameworks, aiming to reduce legal fragmentation and enhance international cooperation. ### **[Shifts in trade policy]** Recent geopolitical developments, such as Brexit and shifts in trade policies by major economies, are influencing the direction of international business law. These changes may lead to new trade agreements, regulations, and legal challenges that businesses must adapt to. (recent geopolitical developments has seen an increased reliance on bilateral trade agreements over multilateral agreements). ### **[The role of soft law]** Soft law, including voluntary industry codes and corporate guidelines, is becoming increasingly important in international business. While not legally binding, these instruments often influence behaviour and set standards that businesses adopt to maintain their reputation and ensure compliance with broader regulatory expectations. **[Sources of international business law]** Treaties and international agreements: Includes formal agreements like the United Nations Convention on Contracts for the International Sale of Goods (CISG) and World Trade Organisation (WTO) agreements. National laws and legislation: National regulations intersect with international agreements, creating a complex legal environment for international businesses. Provisions of international treaties need to be implemented and enforced in domestic jurisdictions through national law. Case law: Judicial decisions influence international business law, such as [*[Transfield Pty Ltd v Arlo International Ltd]* [ ]](https://jade.io/article/66845)(1980) 144 CLR 83 (HCA), *[Vita Food Products Inc v Unus Shipping Co Ltd (in liq)]* \[1939 PC\], and [*[Bonython v Commonwealth]*](https://jade.io/article/315339) \[1951 PC\]. Harmonised uniform codes: Includes industry standards like [[INCOTERMS]](https://iccwbo.org/business-solutions/incoterms-rules/) by the International Chamber of Commerce (ICC) and model laws such as the [UNCITRAL Model Law.] **[Decisions of international tribunals and courts]** ----------------------------------------------------------------- International tribunals play a crucial role in shaping international business practices by resolving disputes and setting legal precedents. Bodies like the International Court of Justice (ICJ) and the International Centre for Settlement of Investment Disputes (ICSID) are instrumental in this process. The following table is a summary of key international tribunals and their impact on international business law: The decisions made by these tribunals can have far-reaching implications for global trade and investment. They help establish a predictable legal environment, which is essential for international business operations. Decisions in courts in other jurisdictions can also have persuasive power where they relate to the implementation of international treaty obligations, this is based on the principle of international comity as required under the Vienna Convention on the law of treaties. However, there are limits to their reach, especially when national security is invoked, as demonstrated in the case study on the following page. **1.5 Legal frameworks for international trade** **[Introduction to legal frameworks]** -------------------------------------------------- International trade operates within a complex legal environment that includes both national and international laws. These laws form a regulatory framework that businesses must navigate to ensure compliance and minimise risks. - - - - ### [Regulatory frameworks in international trade] Regulatory frameworks are crucial in managing how trade is conducted across borders. These frameworks consist of **national laws** that govern domestic trade and **international agreements** that regulate cross-border transactions. The following table outlines the jurisdictions of international trade law ![](media/image10.jpg) **[Public and private international law in commercial transactions]** --------------------------------------------------------------------------------- Together, public and private international law provides a comprehensive framework for managing both state-to-state and private commercial relationships in the global economy. Public law sets the stage for how nations interact and cooperate, while private law governs the intricate details of how businesses operate across borders, ensuring that international trade is conducted smoothly and disputes are resolved effectively. Public international law: Public international law governs relationships between nations, shaping the legal landscape for international trade through treaties and customary law. The [[Vienna Convention on the Law of Treaties (VCLT 1969)]](https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf) outlines how treaties are made, interpreted, and enforced, and defines their interaction with domestic laws. The International Court of Justice (ICJ) resolves disputes between states, ensuring that international agreements are upheld. Additionally, public international law covers ethical obligations, including social responsibility and codes of conduct, which influence global trade practices. Private international law: **Private international law**, on the other hand, deals with cross-border disputes involving private entities and, occasionally, states acting in a commercial capacity. It covers essential commercial agreements such as sales contracts, carriage contracts (for shipping and airlines), finance contracts, and intellectual property (IP) licensing agreements. These contracts often require clear terms regarding applicable law and jurisdiction to manage legal risks. Private international law also includes the procedural rules applied by domestic courts when resolving disputes involving foreign elements, ensuring that such cases are handled fairly and consistently. **[Forms of international business]** ------------------------------------------------- International trade, a key form of international business, involves the import and export of goods and services across borders. Exporting can be direct, with the exporter managing most functions, or indirect, using intermediaries like foreign sales representatives or distributors. Export management companies also handle export duties for producers. The Certificate of Origin, obtained from Australian Customs, is crucial for ensuring goods receive appropriate clearances and tariff benefits, highlighting the importance of compliance with international and national regulations. ### [Licensing and intellectual property rights (IPR)] IPR, encompassing patents, trademarks, copyrights, and trade secrets, represents legal rights resulting from intellectual activity. Licensing these rights internationally requires careful navigation of both domestic and international legal frameworks to protect and enforce these assets across borders. Understanding the regulatory sources that govern these transactions is essential for safeguarding intellectual property in global markets. **[Apply your learning: ]** [Exploiting a new patent internationally] ----------------------------------------------------- Consider the following scenario then answer the questions that follow. Make notes for yourself and if you have any questions that arise from this activity, be sure to bring them to this week\'s workshop. #### Scenario You are a legal advisor for a Chinese tech company that has developed an innovative technology and obtained a patent for it. Your client aims to exploit this patent internationally, beginning with entry into the Australian market. However, due to ongoing geopolitical tensions between China and Australia, you need to carefully navigate these challenges. #### Task Draft a brief legal opinion advising your client on the best strategy to successfully enter the Australian market and ensure effective international exploitation of the patent. **Note:** Reflect on the Chinese tech company\'s experience, where geopolitical pressures forced a shift from direct sales to indirect licensing. This example underscores the need for flexible strategies in response to geopolitical realities. Understanding the principles from [*[Transfield Pty Ltd v Arlo International Ltd]* [(1980) 144 CLR 83 (HCA)]](https://jade.io/article/66845) on licensing agreements, and the impact of the choice of law clauses as discussed in [*[Vita Food Products Inc v Unus Shipping Co Ltd (in liq)]* [\[1939\] AC 277 (PC)]](https://www.uniset.ca/other/cs3/1939AC277.html), can help inform your strategy. My Answer: **To:** \[Client's Name\], \[Position\], \[Chinese Tech Company\] **From:** \[Your Name\], Legal Advisor **Date:** \[Insert Date\] **Re:** Strategy for Exploitation of Patent in the Australian Market #### **1. Introduction** This legal opinion addresses the optimal strategy for entering the Australian market to exploit your patented technology while navigating geopolitical tensions between China and Australia. The recommended approach focuses on mitigating risks, ensuring compliance with local laws, and safeguarding intellectual property rights. #### **2. Recommended Strategy** **2.1 Indirect Licensing Model** - - - - - - **2.2 Protection of Intellectual Property Rights** - - **2.3 Choice of Law and Dispute Resolution** - - **2.4 Compliance with Australian Laws and Standards** - - **2.5 Mitigating Political and Reputational Risks** - - #### **3. Legal Precedents Informing the Strategy** **3.1 Licensing Agreements\ **The decision in *Transfield Pty Ltd v Arlo International Ltd* (1980) 144 CLR 83 (HCA) highlights the importance of clear licensing agreements to protect intellectual property and revenue streams. **3.2 Choice of Law\ **The principles in *Vita Food Products Inc v Unus Shipping Co Ltd (in liq)* \[1939\] AC 277 (PC) underscore the significance of choice of law clauses to ensure disputes are governed by predictable and enforceable legal standards. #### **4. Long-Term Strategy** - - - #### **5. Conclusion** The proposed strategy minimises risks while ensuring compliance with Australian laws and the effective protection of your intellectual property. By adopting an indirect licensing approach and leveraging legal safeguards, your company can achieve sustainable entry into the Australian market and broader international success. **Prepared by:** \[Bridget Garra\] - Legal Advisor **1.6 Contractual terms and legal relationships in international trade** **[Introduction to international contracts]** --------------------------------------------------------- In international trade, contracts define the legal relationships between parties, establishing their rights, obligations, and remedies. Clear and precise contractual terms are crucial to prevent misunderstandings and disputes. This section provides an overview of key documents involved in international trade, their significance, and relevant legal authorities to ensure smooth and legally sound transactions. When entering into international trade agreements, parties have the option to negotiate bespoke contracts or use standard-form contracts. Bespoke contracts are customised to meet the specific needs of the parties and address unique aspects of the transaction. Standard form contracts, conversely, offer a pre-established framework, streamlining the negotiation process. ### [Standard-form contracts] Standard-form contracts are prevalent in international trade due to their efficiency and consistency. Key types: Sales contracts: Formalise the sale of goods and services, outlining essential terms such as price, quantity, delivery conditions, and payment terms. These contracts often incorporate international trade terms, which define the responsibilities of buyers and sellers. Industry-specific contracts: Cater to specific industries, such as grain or iron ore sales, including terms relevant to industry practices and standards. For example, the Grain Trade Australia (GTA) contracts are commonly used for grain sales, outlining standardised terms for trade. **[Key documents in international business transactions]** ---------------------------------------------------------------------- This section will provide an overview of typical documents involved in international trade, highlighting the importance of clear and precise contractual terms. The following table outlines key documents frequently used in international trade transactions: **[Interpreting contractual terms]** ------------------------------------------------ Accurate interpretation of contract terms is vital. Contracts should clearly outline each party's responsibilities and rights to minimise disputes. Conflicts of laws, where multiple jurisdictions' laws may apply, involve determining the appropriate jurisdiction and substantive law. For instance, in *Bonython v Commonwealth* \[1951\] HCA 26, the High Court of Australia addressed issues of legal principles governing contracts. ### [Choice of law] In the absence of an express choice of law, the applicable law is determined by the jurisdiction with the closest connection to the transaction. This consideration involves factors like parties\' residence, place of performance, and currency of payment. Legal precedents, such as *Mendelson-Zeller Co Inc v T & C Providores Pty Ltd* \[1981\] NSW FSC 2, help establish the appropriate law for a contract. Political risk - Government changes or new legislation in the host country Economic risk - Currency fluctuations and economic instability Legal risk - Variations in legal systems and regulatory compliance between home and host countries. Pause and reflect: ### **[Managing risk in patent law]** Consider the following question: - To inform your thoughts and answer, reflect on how the [*[Patents Act 1990]* [(Cth)]](http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/pa1990109/) operates within Australia, and consider the challenges businesses face when enforcing patents in jurisdictions with differing intellectual property laws. **1.8 Discussion Board Post** 1\. Key legal risks associated with exporting to Nigeria and Canada are political instability, corruption risks, different regulations and customs, different legal systems, and fluctuations in both countries currencies. 2\. Contractual provisions that should be included to manage risks in these export transactions include a jurisdiction clause, choice of law clause, and stipulating dispute resolution mechanisms. A jurisdiction clause is vital as there are multiple jurisdictions involved and so in order to resolve disputes that arise, a particular jurisdiction must be specified. This can ensure effective and fair dispute resolution. A choice of law clause is important to define what laws will the contract abide by and this is crucial as all these countries have very different legal systems that could result in different conflict results. This was highlighted in Akai Pty Ltd v People's Insurance Co Ltd (1996) as being of high importance to prevent conflicts between parties. It is also important to stipulate the dispute resolution mechanisms applicable and this would mean specifying an arbitration clause and disputes would likely be resolved through the [ICJ, ICSID, WTO- DSB](https://uncitral.un.org/en/texts/arbitration/modellaw/commercial_arbitration). 3. The company can mitigate the risk of non-payment from Nigerian and Canadian buyers through a letter of credit which provides security from a bank that payment will be given to the Australian company as long as the contract is fulfilled. 4. Product liability considerations the company should be aware of when exporting to these markets is that Australia has clear product liability laws and regulations similar to Canada, however, Nigeria has unclear and limited product liability laws and regulations. It is important that this Australian company is aware and adheres to the varying product liability laws and regulations in order to avoid disputes. **Week 2: Resolving international commercial disputes - Negotiation, mediation & litigation** **[Summary: ]** While most international commercial contracts are executed without difficulty, when something does go wrong and the parties cannot agree on a resolution, an outside individual, or tribunal must resolve the matter. Since the commercial transactions we are focussing on this semester are largely contractual, Parties have a considerable degree of flexibility in determining which method to use for the resolution of the dispute. There are three main methods by which contract disputes can be resolved: Alternative dispute resolution (ADR), litigation in national courts, and arbitration. Each has different features and outcomes. - - - Each option has advantages from a strategic and commercial point of view for the parties. This week, we explore litigation, and because we are dealing with international contracts, transnational litigation, and ADR, in next week\'s content, we will look at arbitration. **[Week Objectives]** - - - - **2.2 Dispute resolution options** **[The complexity of options ]** Dispute resolution in a transnational context encompasses a spectrum of approaches, each offering unique benefits and challenges. National courts provide a formal venue for litigation, governed by established procedural rules, where disputes are adjudicated by a judge or jury. In contrast, Alternative Dispute Resolution (ADR) offers more flexible, private, and often quicker methods, including mediation and negotiation, aimed at reaching mutually agreeable outcomes without the need for court intervention. Arbitration, which can be ad hoc or institutional, blends elements of both litigation and ADR by providing a binding resolution through a neutral arbitrator, often preferred in international commercial disputes for its enforceability and confidentiality. Understanding the distinctions and strategic advantages of these options is crucial for navigating the complexities of transnational legal conflicts. **['Dispute resolutions' video notes: ]** - - - Firstly, we need to determine what distinguishes international business transactions. a. - - Recommended contractual drafting clauses that aim to ensure disputes do not arise. Preselection of applicable rules and the forum in which any disputes will be heard. (good lawyer would have addressed some of these issues in advance. b. - - **[Alternatives to the mainstream options ]** Consider the features and processes of ADR that are outlined in the following table, then answer the questions that follow. ![](media/image3.jpg) #### [Questions] 1. - - - 2. - - - - - - - 3. - ### **1. Cultural Differences and Communication Barriers** - - - ### **2. Selection of the Neutral Party** - - - ### **3. Differing Legal Systems and Practices** - - - ### **4. Power Imbalances** - - - ### **5. Enforceability of Agreements** - - - ### **6. Language Barriers** - - - ### **7. Differences in Perceptions of Neutrality** - - - ### **8. Time Zone and Logistical Challenges** - - - ### **9. Confidentiality Concerns** - - - ### **10. Resistance to ADR Processes** - - - - ### **How to Mitigate These Challenges** 4. 5. 6. 7. 8. **2.3 Parties to a dispute** **[Types of international dispute]** ------------------------------------------------ International disputes can arise between different types of parties, each requiring unique resolution approaches. These disputes may occur between governments, often involving issues like territorial claims or trade disagreements. Another category involves conflicts between a government and an international organisation, typically over international regulations or policy implementation. Additionally, disputes can arise between private parties, such as individuals or corporations, often related to contracts, intellectual property, or investments. Each category presents distinct challenges and requires specialised legal frameworks for resolution. [Government-to-government disputes] - - - - - - [Government-to-private party disputes] - - - - - [Private party to private party ] Options include: - - - - - - - - **[Expert determination and adjudication]** ------------------------------------------------------- Expert determination, also known as \'early neutral evaluation,\' involves the use of an independent expert, who may not necessarily be a lawyer, to assess the matter under dispute. The expert is neutral and independent of both parties, providing an evaluation of the issue at hand. This process is non-binding, meaning that the parties are not obligated to follow the expert\'s recommendations but can use the evaluation as a basis for further negotiation or resolution. Adjudication, on the other hand, is typically a statutory or contractual process, commonly used in the building and resources sectors. It generally involves a determination based on documents submitted by the parties, with limited opportunities for review. Unlike expert determination, adjudication results in a binding decision that the parties must adhere to. The process is designed to be efficient and decisive, providing a quick resolution to disputes within the specific sectors where it is commonly applied. **[Case study ]** [Enforcement of mediation agreements] ------------------------------------------------- Consider the following case study then reflect on the questions that follow. The United Nations Convention on International Settlement Agreements Resulting from Mediation, known as the Singapore Convention on Mediation, is a key instrument designed to facilitate the enforcement of mediated settlement agreements across borders. Opened for signature and ratification on 1 August 2019, the Convention currently (as of July 2024) has 14 parties, including Japan, Qatar, and Singapore. Australia signed the Convention in 2021 but has not yet ratified it. The Convention applies to settlement agreements that are in writing and arise from international disputes, as specified in Article 1(1). However, it expressly excludes certain types of disputes, such as those related to consumer, family, succession, or employment matters. One of the significant advantages of the Singapore Convention is its compatibility with standard procedural rules, such as the UNCITRAL Model Law on International Commercial Mediation and the International Settlement Agreements Resulting from Mediations 2018. This alignment makes the Convention a practical tool for enforcing cross-border mediated agreements, offering legal certainty and reducing the need for litigation. #### Questions 1. - 2. - [Answer:] #### **1. Impact of Australia Ratifying the Convention** If Australia were to ratify the Singapore Convention on Mediation, it would significantly enhance the enforceability of mediated settlement agreements in international disputes involving Australian parties: - - - #### **2. Challenges from Australia's Current Non-Ratification Status** Australia's non-ratification of the Convention poses both legal and practical challenges: - - - #### **3. Implications of Exclusions Under the Convention** The exclusion of consumer, family, succession, and employment disputes from the Singapore Convention creates gaps in its applicability: - - #### **4. Enforcement of Agreements Outside the Convention's Scope** For disputes excluded from the Convention's scope, parties can pursue the following alternatives: - - - - **2.4 Transnational litigation** **[Cross border disputes]** --------------------------------------- Transnational litigation refers to the legal processes that arise when disputes cross national borders, involving parties from different jurisdictions. This complex area of law encompasses a wide range of issues, including the choice of law, jurisdiction, and the recognition and enforcement of foreign judgments. As globalisation continues to connect businesses and individuals across the world, transnational litigation has become increasingly significant, requiring legal practitioners to navigate the intricacies of multiple legal systems. The features of transnational litigation are: - - - - - - - - - - - - - - **[Litigation processes]** -------------------------------------- The following table outlines the varying approaches to the litigation process. **[Choice of law]** ------------------------------- In contracts where both parties are located in the same jurisdiction, the **national law of contract** will apply (whether or not the parties have expressly incorporated the choice of law or not) in both procedural and substantive matters. In **international contracts,** the parties need to make a \'choice of law\' in their contract to govern the substantive interpretation of the contract terms (governing law) and a forum (or jurisdiction ) clause to settle **where** the dispute will be heard. The fact that the court of a particular country had jurisdiction to hear the case does not mean that its own law will apply to the determination of the case. It depends on the application of conflicts of law rules. This decision is made in the *lex fori*. [Examples of 'governing law' and 'jurisdiction' clauses: ] Governing law Sample clause: - Jurisdiction Sample clause: \'The parties submit all their disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the Courts of \[\... \]\'. **[Jurisdiction clause]** ------------------------------------- When determining jurisdictional issues in a domestic situation, the court must first establish if it has the authority to hear the case. If a jurisdictional issue arises, the court will evaluate the appropriateness of exercising its jurisdiction by considering various factors such as convenience, potential advantages and disadvantages, and other relevant aspects. This evaluation is often referred to as \'the balancing test.\' Additionally, if the parties have expressed a choice of law, the court will typically respect this choice, unless it is found to be illegal or contrary to public policy, as illustrated in the case of *PS Chellaram & Co Ltd v China Ocean Shipping* \[1989\] 1 Lloyd\'s Rep 413. (There is a brief explanation of this in your textbook). ### **[Choice of forum]** Choice of forum refers to the parties\' agreement on which court or jurisdiction will hear any disputes that arise. This choice can be classified as: - - However, the application of Private International Law, particularly in cases of conflict of laws, can influence how these agreements are enforced. A court may still decline to exercise jurisdiction even when an exclusive choice of forum exists, as seen in *Supermicro Computer Inc v Digitechnic, SA and Carri Systems, d/b/a Digitechnic*. Additionally, the concept of forum shopping---where parties select a jurisdiction thought to be more favourable to their case---further complicates the enforcement and application of these clauses. **[Take note]** ### Drafting clauses The following are tips for drafting clauses: - - - **2.5 Litigation: Service of process** **[Forum non conveniens ]** --------------------------------------- Service of process is a critical procedure necessary to establish personal jurisdiction over a defendant and to prevent a default judgment. Without proper service, the court cannot legally proceed with the case against the defendant. Defendants may challenge jurisdiction through various defences, including the doctrine of **forum non conveniens.** In this instance, the court has inherent power to stay proceedings, where it is satisfied that another forum has competent jurisdiction and is one where the case can be tried in the interests of all the parties and in the interest of justice. Immunity also plays a significant role in jurisdictional matters. Under the principle of **foreign sovereign immunity,** domestic courts typically lack jurisdiction over foreign government agents, state-owned corporations, or other government actors, except where there is a waiver or the dispute involves commercial activities. Additionally, the \'Act of State\' doctrine limits a domestic court\'s jurisdiction over political acts carried out by a foreign state within its own territory, further insulating certain foreign actions from domestic legal challenges. **[Types of litigation orders]** -------------------------------------------- Litigation orders encompass both interim applications and relief, as well as final orders. Specific interim applications and relief are crucial in preserving the status quo, preventing harm, or ensuring the effective administration of justice before the final resolution of a case. Final orders, on the other hand, represent the court's conclusive determination of the legal rights and obligations of the parties involved, bringing the litigation to a close. Together, these orders play a pivotal role in the litigation process, guiding the progression of the case from its initial stages to its final resolution. The following table outlines the types of measures included in these orders. ![](media/image7.jpg) **[Litigation enforcement and appeal]** --------------------------------------------------- Appeals are dependent on the legal procedure of the courts in the place where the matter is heard. Yet, the enforcement of foreign judgements is not automatically done by a local court in the country of enforcement Australian legislation may enforce judgments. A court order is of little practical value to a plaintiff if a defendant has no assets or income in a jurisdiction. The following is the Australian legislation governing enforcement: - - - - [More context regarding foreign judgements: ] a. Application to an Australian court: *Foreign Judgments Act 1991* (Cth) s 6 - - - **Time bar:** An application must be made within six years after the later of the date of judgement and the date of last judgement in any appeal proceedings. b. A foreign judgment is enforced according to the laws of the domestic/national jurisdiction in which the party is applying. Issues of reciprocity between jurisdictions and between countries apply. Ask yourself, \'What can prevent a foreign judgment from being registered and enforced?\' This depends on the rules in the national jurisdiction. In Australia, the court may decide not to register the judgement on the following grounds: - - - - - c. - - d. A foreign judgment can only be registered in Australia if it was made by a court of a country listed in the Regulations to the Act. - - - Even if the foreign judgment comes from a court that is listed in the Regulations, the judgment must be: - - e. - - f. The judgment debtor may apply to deregister a foreign judgment (called 'setting the foreign judgment aside') for a number of reasons, such as that the foreign judgment: - - - - - - The timeframe in which a judgment debtor must apply to deregister the foreign judgment will be specified when the judgment is registered by the court. **2.6 The Hague Conventions** **[Examples ]** [1. Litigation trial process: Evidence] --------------------------------------------------- The gathering of evidence across borders involves specific international protocols. The \'Convention on the Taking of Evidence Abroad in Civil or Commercial Matters\' (Hague Evidence Convention) provides a structured framework for this process. This convention, widely adopted by numerous countries, including Australia, outlines the procedures for obtaining evidence internationally while ensuring respect for national laws and policies. Key aspects include: - - - - - - - - [2. The recognition and enforcement of foreign judgments] --------------------------------------------------------------------- The convention of 2 July 2019 on the *Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters*, commonly known as the Hague Judgments Convention, is a significant development in international commercial law. This convention aimed to establish a comprehensive framework for the recognition and enforcement of foreign judgments across borders, thereby promoting legal certainty and reducing the risk of conflicting judgments. The convention officially entered into force on 1 September 2023, with 20 contracting parties, including the United Kingdom, committed to its provisions. However, Australia has not yet adopted the convention, leaving its applicability and influence within the Australian legal landscape to be determined in the future. The following is a quote taken from the convention: *By setting forth commonly accepted conditions for recognition and enforcement---and agreed grounds for refusal---the Convention provides legal certainty and predictability to parties involved in cross-border transactions, providing clarity as to whether and to what extent a judgment will be recognised and enforced in another jurisdiction. By ensuring the recognition and enforcement of foreign judgments, the Convention enhances access to justice by reducing legal timeframes, costs and risks in cross-border circumstances. The Convention generally strengthens a positive national and international environment for multilateral trade, investment, and mobility.* **[Weekly summary: ]** Advantages and disadvantages of litigation ------------------------------------------ Before continuing with this week\'s activities, take a moment to reflect on the content you have engaged with this week. The following is a high-level summary of the characteristics of dispute resolutions: - - - - - - - - - - - **2.7 Pre-workshop activity: international contracts** **Question 1** When negotiating an international contract, who should have the primary role of understanding cross-cultural considerations: The client, the lawyer or a specially engaged consultant? - - - **Question 2** PHB Ltd is a NSW producer of coal. B is a manufacturer located in Singapore, which uses NSW coal. PBH Ltd sends an email to B's office in Singapore offering to sell 100 tonnes of coal at \$x per tonne Free on Board (FOB) delivery to be made in August. B sends an acceptance by return email. A dispute arises and the preliminary question is which law governs the transaction between the parties---NSW/Australian law or Singaporean law. What factors would be relevant to the determination of the governing law? Valid contract: By PHD sending an email to B offering coal and B sending an email back accepting the offer. However, as this was a contract developed over email, there was no express terms defined. No governing law clause, jurisdiction clause, or dispute resolution. Since B uses NSW Coal, maybe their previous contracts express terms and implied terms can be used to govern this. But based on the information there is none. It is clear that apart from the application of international law, there is only two jurisdictions of law that can be applied: Singapore or Australia. In the facts, it mentions Free on Board (FOB) delivery. This indicates when the ownership of goods transfers from buyer to seller and who is liable for goods damaged or destroyed during shipping. Place of performance: Under FOB terms, the seller (PHB Ltd) is responsible for delivering the goods onto the buyer\'s designated vessel at the port of shipment. Since PHB Ltd is in New South Wales (NSW) and produces coal there, the port of shipment is likely located in NSW. This suggests that a significant part of the contractual performance---specifically, the delivery of the coal---takes place in NSW, creating a strong connection to NSW law. The FOB term strengthens the argument that NSW law may govern the transaction because the critical delivery obligation occurs in NSW. However, the FOB term alone does not conclusively determine the governing law; it is one of several factors that a court or tribunal would consider. However, examining international law shows us that the **United Nations Convention on Contracts for the International Sale of Goods (CISG)**: Both Australia and Singapore are parties to the CISG, which might apply by default if the contract does not expressly exclude it. The CISG provides uniform rules for international sales, but it does not resolve the question of governing law unless invoked by the parties. Maybe the australia and singapore free trade agreement. **2.8 Activity: Forum non conveniens (translates to inconvenient forum)** **Definition:** Forum non conveniens refers to a court\'s discretionary power to decline to exercise its [[jurisdiction]](https://www.law.cornell.edu/wex/jurisdiction) where another court, or [[forum]](https://www.law.cornell.edu/wex/forum), may more conveniently hear a case. #### *Voth v Manildra Flour Mills Pty Ltd* (1990) 171 CLR 538, per Mason CJ 1. 2. 3. - The judgment of Mason C.J., Deane, Dawson and Gaudron JJ. demonstrates the unreality of asserting a different test for each situation. Once there has been a challenge to the exercise of jurisdiction by the \"local\" court, the issues are the same, no matter what form of application is used to bring the matter before the court. In the end, however the principle is expressed, the matter turns on either the appropriateness or inappropriateness of the selected forum. That is not to say that the onus of proof will necessarily be resolved in the same way; that is a matter to which I will turn later in these reasons. - - - [Notes on case: ] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 o Court followed Deane J in Oceanic Sun - Apply the clearly inappropriate forum test ▪ D has to show that the forum is clearly inappropriate and that the court is to dismiss proceedings which are oppressive or vexatious Do not look at balance of conveniens, a more appropriate jurisdiction or other factors in Spiliada -- Court rejected Spiliada o Test as to whether it was vexatious and oppressive (Deane J) ▪ Oppressive - seriously and unfairly burdensome, prejudicial or damaging ▪ Vexatious - productive of serious and unjustified trouble and harassment o Voth succeeded in showing that the forum was inappropriate o What did the court look at when considering whether vexatious or oppressive ▪ V lives and works in Missouri ▪ Acts or omissions took place in Missouri Although damage suffered in Australia ▪ Action has substantial connection to law in M ▪ Professional standards that V would be held to would be the standard in M o Here it was shown that NSW was a clearly inappropriate forum \- Not a balancing act - must determine that NSW was inappropriate not that Missouri was more appropriate **WEEK 3: Resolving international commercial disputes - Arbitration** Summary: Arbitration is a widely recognised method of resolving international commercial disputes, offering a balance between flexibility and finality. Unlike litigation, which can be complicated by differing legal systems and enforcement challenges, arbitration provides a private and impartial process where parties have greater control over the proceedings. The outcome is a binding decision, which, thanks to international treaties, can be enforced in numerous countries worldwide. However, while arbitration offers many advantages, it also comes with potential drawbacks, such as limited rights of appeal and the possibility of higher costs. This week, we will explore the nature of arbitration, its process, and its relevance in both legal and commercial contexts. **[Week objectives: ]** - - - **3.2 Arbitration** Introduction to arbitration --------------------------- Arbitration is a method of dispute resolution where parties agree to submit their conflict to an independent arbitrator rather than going to court. It is a private and binding process, often preferred in commercial disputes due to its flexibility and confidentiality. Arbitration offers a neutral forum and can be faster and more cost-effective than litigation. Refer to the following table to learn more about the key characteristics of arbitration. ### **[The role of consent in arbitration agreements]** Parties must explicitly agree to resolve their disputes through arbitration, either within the main contract or as a separate agreement. The agreement specifies critical details like the choice of arbitrators, procedural rules, and the confidentiality of the process. The arbitration agreement typically outlines critical details such as the selection of arbitrators, the procedural rules, and the confidentiality of the process. **[Take note: ]** In [*[Comandate Marine Corp v Pan Australia Shipping Pty Ltd]* [(2006) 157 FCR 45]](https://classic.austlii.edu.au/au/journals/ANZMarLawJl/2007/7.html), the Federal Court of Australia upheld the principle that an arbitration agreement is a separate and independent clause, even if the main contract is disputed. The case emphasised the importance of consent and the binding nature of arbitration agreements when parties have clearly agreed to them. The arbitration clause is often treated as separate from the main contract, ensuring that the agreement to arbitrate remains valid even if other parts of the contract are challenged, as highlighted in [[*Fiona Trust & Holding Corp v Privalov*](https://www.nadr.co.uk/articles/published/ArbitLRe/Fiona%20v%20Privalov%202007.pdf) \[2007\] UKHL 40.] **Key considerations:** - - - These considerations, supported by case law, ensure that parties have a clear understanding and mutual agreement on how arbitration will proceed, preserving the integrity and fairness of the dispute resolution process. **Procedural aspects of arbitration** ------------------------------------- Procedural aspects of arbitration govern how disputes are managed, focusing on rules for evidence, expert witnesses, and the conduct of hearings. These procedures ensure a **fair** and **efficient** process, tailored to the specific needs of the parties involved. [Learn more about procedural rules in arbitration:] **UNCITRAL MODEL RULES** The UNCITRAL Arbitration Rules provide a detailed and comprehensive framework that governs the conduct of arbitration proceedings. Established by the United Nations Commission on International Trade Law (UNCITRAL), these rules are widely recognised and adopted internationally, offering a neutral and balanced approach that can be applied across various jurisdictions. The Rules cover all procedural aspects, from the initiation of proceedings to the appointment of arbitrators, conduct of hearings, and the issuance of awards. Australia\'s adoption of these Rules reflects their international acceptance and adaptability, ensuring consistency and predictability in the arbitration process, especially in cross-border disputes. **AUSTRALIAN CONTEXT** In Australia, the International Arbitration Act 1974 (IAA) plays a pivotal role in aligning domestic arbitration practices with international standards. The IAA incorporates the UNCITRAL Model Law as the default procedural framework for international arbitrations conducted within Australia. This ensures that arbitrations are conducted in a manner consistent with international best practices, providing parties with a reliable and familiar process. The IAA also facilitates the enforcement of foreign arbitral awards in Australia, reinforcing the country's commitment to arbitration as a preferred method for resolving international commercial disputes. **PROCEDURAL FAIRNESS** Procedural fairness is a cornerstone of arbitration, ensuring that the process is just and equitable for all parties involved. This principle mandates that each party must be given a reasonable opportunity to present their case, challenge evidence, and respond to the arguments of the other party. The rules governing procedural fairness cover critical aspects such as the admission and evaluation of evidence, the use of expert witnesses, and the conduct of hearings. In Australian arbitration, procedural fairness is not only a legal requirement but also essential for maintaining the integrity and legitimacy of the arbitration process. **INTERNATIONAL APPLICABILITY** The global influence of the UNCITRAL Arbitration Rules cannot be overstated, as they have shaped the arbitration laws of over 85 countries. These Rules serve as a benchmark, providing a consistent and widely accepted procedural foundation for international arbitration. Their adaptability allows them to be applied in diverse legal systems, including Australia's, where they enhance the efficiency and fairness of the arbitration process. The international applicability of the UNCITRAL Rules ensures that parties from different jurisdictions can engage in arbitration with confidence, knowing that the process will be conducted under a well-established and recognised framework. ### [Drafting an arbitration clause] - - - - - **[Case Study ]** ### [Conflict over governing law in international arbitration] In the case of *Union of India v McDonnell Douglas Corp* \[1993\] 2 Lloyd's Rep 48, the Union of India entered into a contract with McDonnell Douglas Corporation (MDC) for the purchase of military aircraft. The contract contained an arbitration clause that specified Indian law as the governing law. However, when a dispute arose, the Union of India initiated arbitration proceedings in England, raising questions about whether the arbitration agreement should be governed by Indian law, as per the contract, or English law, where the arbitration was conducted. The court ruled that while the contract was governed by Indian law, the arbitration agreement was subject to English law due to the arbitration being conducted in England. Under an arbitration clause, procedural rules (Lex Fori) may be different from the substantive law, which is used in that forum to interpret the contract itself. If this is the case, then the substantive law needs to be proved in the forum as a matter of expert evidence. ### **[Institutional vs. ad hoc arbitration]** Arbitration offers two main approaches: **institutional arbitration**, managed by established bodies, and **ad hoc arbitration**, conducted independently by the parties. Each approach has distinct advantages and challenges, making it important to choose the one that best suits the needs of the dispute. [Differences between institutional and ad hoc arbitration: ] Institutional arbitration: Managed by established bodies like the ICC or the Australian Centre for International Commercial Arbitration (ACICA), providing a structured process and support services. It is predictable and reliable but potentially more expensive. Ad hoc arbitration: Conducted independently by the parties without institutional support, offering greater flexibility but requiring more detailed planning. It is flexible and cost-effective but requires more effort from the parties to manage. **[Apply your learning: ]** ### Understanding the application of the UNCITRAL Model Law in Australia Consider the following question: How did the Australian courts interpret and apply the UNCITRAL Model Law in the [*[Gilgandra Marketing Co-Operative Limited v Australian Commodities & Marketing Pty Ltd & Anor]* [\[2010\] NSWSC 1209]](http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2010/1209.html) case, and what implications does this have for the enforceability of arbitration clauses in international contracts? To inform your thoughts and answer, reflect on the specific details of the Gilgandra case. Consider how the court\'s interpretation of the UNCITRAL Model Law impacts the resolution of disputes involving international contracts within the Australian legal framework. - - - - - - - **3.3 Institutional vs. ad hoc arbitration** **[Types of arbitration]** -------------------------------------- Arbitration can be broadly categorised into two main types: institutional and ad hoc arbitration. Each type offers distinct advantages and considerations depending on the nature of the dispute, the parties\' preferences, and the complexity of the issues at hand. ### [Institutional arbitration] Institutional arbitration involves an established institution\'s administration of the arbitration process, which provides a structured framework through procedural rules, administrative support, and dedicated venues. This type of arbitration is often favoured in complex disputes where an institution\'s reliability, predictability, and expertise can offer significant benefits, including greater efficiency and consistency in the resolution process. ### [Ad hoc arbitration] Ad hoc arbitration is conducted independently by the parties without the involvement of an administering institution. This approach allows maximum flexibility in determining procedures and timelines, making it a more customisable option. However, it can also present challenges, particularly in the absence of institutions\' administrative and procedural support, which may lead to potential inefficiencies or delays, especially in more complex cases. **Key institutions of arbitration** ----------------------------------- To understand arbitration, it\'s helpful to compare key institutions involved both internationally and within Australia. Globally, organisations like the International Court of Arbitration, the American Arbitration Association, and the London Court of International Arbitration provide structured support for resolving commercial disputes. Moreover, Singapore, Hong Kong, Dubai and London, are centres for international arbitration. Similarly, in Australia, institutions such as the Resolution Institute, the Australian Centre for International Commercial Arbitration, and the Australian Commercial Dispute Centre play vital roles in managing arbitration processes. The following table outlines the main features of these key arbitration bodies: ![](media/image6.jpg) **[Semi-institutionalisation of arbitration in Australia (2010 amendments)]** ----------------------------------------------------------------------------------------- ### [2010 amendments overview] The 2010 amendments to the International Arbitration Act represent a pivotal shift towards a more structured approach to arbitration, addressing key issues that commonly arise in ad hoc proceedings, such as delays and challenges to arbitrators. These amendments aim to streamline arbitration procedures by enhancing the role of designated and appointing authorities, ensuring that disputes are resolved more efficiently and fairly. Key provisions, including Articles 6, 8-10, 13, 14, and 41, introduce measures to prevent deadlocks, facilitate the smooth appointment and replacement of arbitrators, and protect parties from unreasonable fees. **Article 6: Role of designated authority**: Prevents deadlocks by giving designated authorities the power to take necessary actions to ensure the arbitration proceeds smoothly. **Article 8-10: Appointing authorities:** Expanded powers for appointing authorities to appoint arbitrators, particularly where parties fail to agree, preventing deliberate delays. **Article 13: Challenges to arbitrators**: Sets out the process for challenging an arbitrator\'s appointment, ensuring impartiality and fairness. **Article 14: Replace of arbitrators:** Details the process for replacing arbitrators, ensuring that proceedings are not unduly delayed. **Article 41: Review of fees and expenses:** Provides a mechanism to prevent arbitrators from setting unreasonable fees, protecting parties from potential abuse. [Binding nature of arbitral awards and enforcement in Australia ] Arbitral awards are final and binding on the parties involved. Awards have the same enforceability as a court judgment in national jurisdictions. ### Reciprocal enforcement National courts in Australia play a crucial role in enforcing arbitral awards, treating them with the same authority as their own judgments, provided the arbitration agreement is valid and due process has been observed. The ability to challenge an arbitral award in court is strictly limited. Such challenges are only permitted on specific grounds, including: - - - This ensures that while arbitral awards are enforceable, there is still a safeguard in place to address any fundamental issues that may arise during the arbitration process. [Arbitration enforcement in Australia] Consider the following case: **TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd \[2014\] FCAFC 83** How does this case illustrate the binding nature of arbitral awards and the limited grounds for challenging them under the [[International Arbitration Act 1974]](https://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/iaa1974276/) (Cth)? To inform your thoughts and answer, reflect on how the Federal Court\'s decision in this case aligns with international standards for arbitration and consider the implications for both domestic and international arbitration practices within Australia. Example - United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) - ad hoc arbitration The [[New York Convention]](https://www.newyorkconvention.org/english) provides a framework for the recognition and enforcement of foreign arbitral awards without the need for an institutional body to oversee the arbitration. It plays an indelible role in underpinning the validity of ad hoc arbitration across international borders. This Convention exemplifies how ad hoc arbitration can achieve global consistency and reliability in resolving cross-border disputes through its widespread adoption (172 parties to the convention as of July 2024) and enforcement mechanisms. #### To attract the New York Convention - - - - - #### To enforce an award under the New York Convention - - - **3.4 Enforcement of arbitral awards** Enforcement of arbitral awards is critical to arbitration, ensuring that the outcomes are respected and implemented across jurisdictions. In Australia, the enforcement of domestic and international arbitral awards is governed by the [*[International Arbitration Act 1974]* [(Cth),]](https://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/iaa1974276/) with courts playing a significant role in upholding these awards. However, when dealing with foreign arbitral awards, additional considerations, including public policy and the arbitrability of the dispute, come into play. Australia **Enforcement of arbitral awards in Australia** - - - - - - - - **Non-enforcement of arbitral awards under the New York Convention** In some instances, despite the broad recognition of arbitral awards under the New York Convention, there are specific and limited circumstances where an award may not be enforced. Understanding these exceptions is crucial for law students, as they highlight the delicate balance between respecting the arbitration process and protecting fundamental legal principles. ### Key grounds for non-enforcement (Article V, New York Convention) 1. An award may be refused enforcement if obtained through corrupt practices or fraud. 2. Enforcement can only be allowed if a party received proper notice of the arbitration proceedings or was denied a fair opportunity to present their case. 3. 4. 5. 6. If enforcing the award would violate the country\'s public policy where enforcement is sought, it may be denied. **Guidance and variability** - - **Reversal of arbitral awards** Arbitral awards in Australia are designed to be final and binding, with minimal opportunities for appeal. This aligns with the broader policy of minimal court intervention in arbitration, reinforcing the autonomy and efficiency of the arbitral process. ### Binding nature of awards Arbitral awards are generally final, and appeals are only permitted under exceptional circumstances, as outlined in Article V of the New York Convention and Article 34 of the [UNCITRAL Model Law] Minimal court intervention Courts in Australia adhere to a policy of minimal intervention in arbitration matters. This principle was emphasised in [[*Lin Plastering Pty Ltd v Platinum Construction (Vic) Pty Ltd*\[2018\] VSC 221]](https://jade.io/article/583615), where the court supported limited interference with arbitral decisions. ### Judicial restraint in appeals In [[*Sino Dragon Trading Ltd v Noble Resources International Pte Ltd* \[2016\] FCA 1131]](https://jade.io/article/492862), the Federal Court of Australia highlighted the need for significant judicial restraint when considering challenges under Article 34 of the UNCITRAL Model Law (paras 71--73). Critical considerations in the enforcement of arbitral awards and associated costs Enforcement of arbitral awards varies significantly across jurisdictions, with courts applying different standards and practices. The following table, with examples from China and Canada, illustrates how enforcement trends and judicial attitudes have evolved. **Third-party funding in arbitration** Third-party funding is increasingly common in international arbitration, but it raises potential issues such as conflicts of interest, cost uncertainty, and privilege questions. This practice is permitted by legislation in Hong Kong and Singapore and is de facto allowed in the People\'s Republic of China. **Explore: Costs associated with arbitration** Look at Esso Australia Resources v Plowman (1995) HCA 19 to understand the determination and enforcement of arbitration costs. - - - 3.5 Evidence gathering in cross-border arbitration: Situations outside Australia Case Study: Evidence gathering in arbitration cases outside Australia. In the case of [[S*amsung C&T Corporation, in the matter of Samsung C&T Corporation* \[2017\] FCA 1169]](https://jade.io/article/550153), the Federal Court of Australia raised questions about the ability of Australian courts to issue subpoenas for arbitration proceedings seated outside Australia. This limitation affects the capacity of parties to gather necessary evidence for arbitration. Practical options: - - - Question: Given the challenges outlined in this case, what practical steps would you recommend to ensure effective evidence gathering in arbitration proceedings seated outside Australia? Answer: In considering the practical options, expanding the tribunal\'s powers to order evidence production is often the most effective within the arbitration framework. However, designating Australia as the seat of arbitration could provide a broader range of legal tools, including access to local courts for evidence collection. The decision will depend on the specific needs of the case and the jurisdictions involved. [Compulsory referral to arbitration] ------------------------------------------------ 1. - - 2. - - **Issues to consider:** - - - **WEEKLY SUMMARY:** ADVANTAGES AND DISADVANTAGES OF ARBITRATION The following is a high-level summary of the characteristics of arbitration as a method of dispute resolution: **Advantages:** - - - - - - **Disadvantages:** - - - - - WEEK 4: INVESTOR-STATE SETTLEMENT Each party needs to make their own commercial decision on how it wishes to prosecute its dispute. In one particular instance, however, the use of arbitration is preferable. This is in the case of disputes against a host nation where government action adversely affects direct foreign investment---so-called Investment arbitration or Investor-State Dispute Settlement (ISDS). **4.2 The background to investment arbitration** **Overview of Investor-State Dispute Settlement** Investor-State Dispute Settlement (ISDS) is a specialised form of dispute settlement whereby one of the parties is a commercial party, and the other party is actually a state party; the investor is the commercial party, and the state is the government instrumentality. This scenario necessitates a specialised form of dispute resolution mechanism. The need arises because, when disputes occur between foreign investors---who are typically commercial entities---and government instrumentalities, there is a significant risk that the government may unilaterally alter the rules. This is a prerogative that governments, as sovereign entities, inherently possess. Such unpredictability, however, is particularly detrimental to investment and the broader goal of fostering international investment within these jurisdictions. Therefore, the international community recognised the necessity of establishing a mechanism that would provide adequate redress for commercial entities in disputes involving joint ventures with government partners. Additionally, from the perspective of host states, it was crucial to create a stable, predictable, and secure environment that would attract and retain foreign investment. [Parties involved in the ISDS] **The investor** - - - - - **The state** - - - - - - **The Australian situation** ISDS mechanisms are applicable both to inbound investments into Australia and to outbound investments by Australian entities. Foreign commercial entities operating in Australia may encounter disputes arising from legislative, executive, or judicial actions. These disputes can be addressed through ISDS or international commercial arbitration. Historically, Australia has been a capital-importing country, relying on foreign investment to generate wealth, create jobs, and sustain local businesses. This dependence on foreign capital aligns Australia with other nations that have historically relied on external investment for economic growth. In addition to being a capital-importing country, Australia has increasingly become a capital-exporting nation, particularly since the mid-1980s when it ratified a significant international treaty in this domain. Australian investors, particularly those in the mining sector, such as BHP and Rio Tinto, have actively sought opportunities abroad, often leading to the exploitation of mineral resources in foreign markets. While this international investment has been lucrative, it has also created a fertile ground for disputes between Australian companies and host states. **Disputes over international investment video notes:** - - - - - - - - - - - - - - **4.3 International investments - Sources of protection** Podcast notes: (discusses the management of investment risks and government actions in investor-state disputes. - - - - - - - - - - - - - - - - - - - - - **The forms of agreements and protections** There are four categories in which international commercial investors in a foreign country can seek to protect themselves from the power of government simply by changing the rules at any time. **Concession agreements** A concession agreement refers to a contract specific to a particular investor or project, where the host state---often a foreign state but potentially Australia---grants certain rights, benefits, exemptions, or subsidies to the commercial party. These agreements are formalised through contracts between the foreign investor and the government. **Host nation investment laws** Host nation investment laws are enacted by certain countries to provide general benefits, guarantees, or assurances to foreign investors. These laws are specifically designed to offer security and attract foreign investment. **Bilateral treaties** Bilateral Investment Treaties (BITs) are agreements between two nations aimed at protecting and promoting investments by providing legal assurances and rights to investors. While modern in name, BITs have evolved from earlier treaties of friendship, commerce, and navigation. These treaties have proliferated globally, with countries like Germany, the United States, and Australia having numerous BITs. Each treaty is negotiated based on the specific priorities and bargaining strengths of the involved nations, leading to variations in their terms. BITs often serve as foundational agreements, sometimes incorporated into broader free trade agreements that include provisions on tariffs and trade in goods and services. (Note: See the example that follows for a timeline of the evolution of BITs through the ages.) **Multilateral treaties** Multilateral treaties involve multiple countries signing a single agreement, creating binding commitments between all parties. Three significant examples include: 1. 2. 3. **The evolution of BITS** 1800-1959 [Treaties of Friendship, commerce, and navigation ] - - - 1959 - 1989 [ Investment protection and promotion agreements] ------------------------------------------------------------------------- - - - 1989 --- 2024 [Expansion and integration with trade agreements] --------------------------------------------------------------------------- - - - **Types of protective clauses and devices** There are numerous forms of protection available, limited only by what parties can negotiate. However, certain well-established protections, refined through long practice, have become standard in the field. These protections vary in scope and effectiveness, with some being more widely recognised and useful than others. The following list ranges from easiest to most difficult for a government to offer, at least rhetorically speaking. 1. 2. This clause obligates the government to provide fair and equitable treatment to investors. Although broad and somewhat undefined, it serves as a critical benchmark for fairness. It considers factors like the reasonableness of changes to legal frameworks, the necessity of such changes, and whether they are proportionate and just. 3. This clause is considered the \'gold standard\' for investment protection. It commits the host nation to protect the investor\'s interests fully and to maintain the security of the investment. While the language may be broad, its interpretation has been refined through numerous legal cases. 4. The MFN clause ensures that if the host country grants more favourable rights or protections to another country in a subsequent agreement, those enhanced terms will automatically apply to the original investor. The scope of this clause can vary, covering either all aspects of the treaty or specific areas, and it often becomes a point of dispute. 5. An umbrella clause elevates contractual obligations between a government and an investor to the level of treaty obligations. This clause allows an investor to claim for a breach of the treaty in addition to or instead of a breach of contract, providing an additional layer of protection. 6. This clause seeks to \'stabilise\' the legal environment by preventing the host government from changing laws in ways that would adversely affect the investment. Some versions of the stabilisation clause also attempt to incorporate international law or general principles of fair dealing into the governing law, offering a safeguard against arbitrary changes in the host country\'s legal framework. **4.4 Public international law** **Introduction to public international law** Investment disputes often require resolution beyond the domestic courts of the host country, particularly when impartial justice cannot be guaranteed. International commercial arbitration can provide an alternative, bypassing reliance on the host nation's legal system. Sovereign immunity Typically, a state cannot be sued in another state's courts without its consent. This principle also applies in international courts such as the International Court of Justice. Hierarchy of sources The primary sources of international law include state practice, treaties, international customary law, tribunal decisions, and analogies with other legal systems. **State responsibility in international law - State responsibility adjudicated for commercial acts by arbitration** A host state is responsible for wrongful acts committed by its officials, agencies, or political subdivisions. Liability extends to actions beyond the official's authority, as long as they act under the guise of government authority. Diplomatic claims are state-to-state actions where the investor's home government seeks redress on behalf of the investor. These claims are slow and rely on the home government's willingness to act, making them an inconsistent solution for investors. Since the 1960s, a system has evolved allowing investors to directly sue a host government in an international arbitration tribunal. This process requires the host state's advance consent, typically provided through treaties like the ICSID Convention, which facilitates dispute resolution without needing additional consent at the time of the dispute. **The ICSID Convention** - - - - Threshold essentials for ICSID claims To bring a claim under ICSID, two primary conditions must be met: the host state must have consented to international arbitration, and the dispute must involve an investment. Notably, the ICSID Convention does not define \'investment\', allowing for a broad interpretation. Additionally, the claim must be by a national of another state against a government party to the ICSID Convention. Investment and nationality Even if a foreign investment is made through a subsidiary incorporated in the host country, the ICSID Convention allows the parent company to bring claims if the subsidiary is under foreign control. This is provided for under Article 25 of the ICSID Convention. Scope and jurisdiction of ICSID The ICSID Convention governs a wide range of disputes, with 60% of claims stemming from bilateral investment treaties (BITs). Other sources of consent include concession agreements, the Energy Charter Treaty, and national investment laws. ICSID claims cover various sectors, notably oil, gas, and mining, but also extend to construction, tourism, and telecommunications. Arbitration process under ICSID Arbitrations under ICSID typically involve three arbitrators, with one appointed by each party and a chair appointed either by mutual consent or by ICSID. The process includes preliminary hearings on jurisdictional issues, and awards are final and binding without appeal. The convention also provides for the enforcement of awards across all contracting states, similar to the New York Convention for private commercial arbitration. Notable Cases Several high-profile cases illustrate the complexities of ISDS, including: 1. 2. 3. **4.5 Damages, claims and expropriation** **The binding of awards** Damages and enforcement play a critical role in ensuring that awards granted by international arbitration bodies, such as the International Centre for Settlement of Investment Disputes (ICSID), are both binding and enforced across different jurisdictions. The mechanisms for enforcing these awards, as well as the potential for challenging them, are governed by strict legal frameworks that aim to maintain the integrity and finality of the arbitration process. Finality and annulment of ICSID awards - - - - Recognition and enforcement of awards - - - **Sovereign immunity from execution** - - - - **Notable cases** Yukos v. Russia This case is a landmark example, where the Permanent Court of Arbitration awarded US\$50 billion to shareholders for the wrongful expropriation of Yukos assets by Russia. Although this award was overruled because of an error in 2016, on appeal in February 2020, the decision was reinstated, demonstrating the complexities involved in enforcing such large-scale awards. Other notable cases include claims against Spain, resulting in a €110 million award, and cases such as *Lahoud v. The Democratic Republic of Congo* and *Kingdom of Spain v. Infrastructure Services Luxembourg*, which highlight the varied and significant outcomes of ISDS proceedings. **Bringing a claim: Diplomatic claims** - - - - - - - **Example: The Dillingham claim** A notable example of a diplomatic claim is the Dillingham case (US v. Australia), which arose from the Australian government's decision to ban sand mining on Fraser Island in the 1970s. The claim, which lasted until 1984, illustrates the complex interplay between national policies, environmental concerns, and the rights of foreign investors. **Expropriation** - - [Permissibility and compensation ] - - - [Indirect and creeping expropriation ] - - - - **Indirect expropriation examples** These can take various forms, often involving government regulations or actions, that while not amounting to outright seizure, significantly impair the value or operation of an investment. Such as: [Environmental controls ] Cases like TecMed and Dillingham illustrate how environmental regulations can amount to indirect expropriation. In these cases, investors argued that government actions intended to protect the environment, such as bans or restrictions, effectively deprived them of the economic use of their investments. [Heritage controls ] Heritage protection measures can also lead to claims of indirect expropriation, as seen in cases like Parkerings and Glamis Gold, where the protection of indigenous heritage sites interfered with the investors' development plans, leading to significant economic losses. [Confiscatory taxes and corrupt judicial systems] Excessive or discriminatory taxes can be seen as a form of indirect expropriation, particularly if they are used to undermine foreign investments. Similarly, a corrupt, incompetent, or dilatory court system, as evidenced by the White Industries case in India, can deny investors the ability to protect their rights, amounting to an effective expropriation. [Health controls ] Health regulations, such as those implemented in Australia and Uruguay to control tobacco products, have also been challenged as indirect expropriation. These cases demonstrate the tension between public health objectives and the rights of investors under international law. [Economic crises and policy changes ] The Argentine economic collapse of 2002 led to numerous claims of indirect expropriation, with over 40 cases filed by foreign investors who suffered losses due to government actions taken in response to the crisis. Similarly, policy changes, such as Spain's adjustment of solar tariff concessions and Germany's shift in nuclear energy policy, have also triggered claims of indirect expropriation, reflecting the risks investors face when governments alter the regulatory landscape. **4.6 Pre-Workshop Activity: Expropriation case study** Questions 1. - Xania does have the right to nationalise the oil industry by expropriation if it is carried out in the public's interest which they are claiming is to support the country\'s infrastructure and levels of poverty. While the contract with MNC'S with country c allows protection of their investment, Xania's right to nationalisation can supersede this. - 2. - - Adequate compensation will vary depending on the particular property that the government is now nationalising. Considering this case involves oil which is a highly expensive industry in that it costs a lot to run, produce, machinery, damages and compensation for the removal of the company and the stopping of their operation for their financials, etc, a proper evaluation of this would need to be considered to determine whether its an adequate compensation'. 3. - Foreign investors are not going to want to invest in the country due to this uncertainty and instability that their investment will be affected by nationalisation. It will become unattractive. - The decreased demand in investment will cripple the economy as Xania would have to rely on their own domestic businesses. While their initial idea to nationalise the oil industry to benefit the country's citizen may provide a short term remedy, there is long-term consequences of this. **4.7 Activity: ISBS in practice - Australia and Thailand as trading partners** Australia and Thailand have long-standing trade relations, but recent tensions have arisen due to a dispute between an Australian company and the Thai government. The Australian company AquaClean Industries signed a contract with the Thai government to provide advanced water filtration systems for industrial use. After the contract was signed, Thailand introduced new environmental regulations that required changes to the water filtration system design. These changes significantly increased the cost of production for AquaClean, causing financial strain on the company. When AquaClean requested compensation from the Thai government for these unexpected costs, the Thai authorities denied responsibility, claiming that the new regulations were a matter of public policy and that AquaClean should have anticipated potential changes in environmental law. AquaClean, feeling that its investment was unfairly affected by the new legislation, has initiated an Investor-State Dispute Settlement (ISDS) claim under the terms of the ASEAN-Australia-New Zealand Free Trade Agreement (AANZFTA), which includes an ISDS provision. The following questions are based on the scenario in models: 1. - - - - 2. - - - 3. - - - 4. "As Thailand is a contracting state of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards, international arbitral awards can, in principle, be enforced in Thailand. However, not *all* awards will necessarily be enforceable. The Arbitration Act BE 2545 (2002) gives courts the discretion to deny the enforcement of an award if the court determines that enforcing it would be contrary to "public order or the good morals of the people" - [[https://www.tilleke.com/insights/enforcement-of-arbitral-awards-in-thailand-procedural-notes-for-practitioners/]](https://www.tilleke.com/insights/enforcement-of-arbitral-awards-in-thailand-procedural-notes-for-practitioners/) The lack of a definition of public policy under Thai law means there is no rule for the court to follow. Thai courts must consider their approach to how public policy grounds are applied to requests to refuse enforcement of arbitral awards on a case-by-case basis. The result is that there is no clear-cut interpretation by Thai courts in determining public policy grounds. [[https://www.ibanet.org/public-policy-implications-enforcement-arbitral-awards-Thailand]](https://www.ibanet.org/public-policy-implications-enforcement-arbitral-awards-Thailand) 5. - - 6. **Week 5: International sale of goods under domestic law & Incoterms.** This week, we will explore the basics of international sales law, focusing on how contracts for the sale of goods are governed. The contract is the main source of the parties\' rights and obligations, including both expressly included terms, those implied by the governing law and those implied by virtue of customary practices as established by the parties. Customary trade terms, for example Incoterms, are crucial in international commerce, as they provide a clear framework for assigning responsibilities between the parties. Contracts usually specify the applicable national law, which guides interpretation and enforcement. However, different countries, even those with similar legal systems like Australia and the UK, may have different rules for interpreting contracts. To address some of these differences and promote consistency, international bodies such as the ICC have developed standardised terms like Incoterms, which are widely used to define responsibilities related to the delivery of goods. In this module, we will examine Incoterms, focusing on their purpose, usage, and practical application in international sales contracts. **5.2 Application of domestic sales to international transactions** **The interaction between domestic and international law** - - - The interaction between domestic and international law in areas such as conflict of laws, the scope of international conventions, and the application of regional customs in international sales. [Domestic law's role in international sales ] - - - - [Flexibility of international commercial law ] - - - - - **Key considerations for international sales** When engaging in international sales, it\'s crucial to determine whether a transaction meets the threshold criteria of the CISG (United Nations Convention on Contracts for the International Sale of Goods). - - Even if the CISG applies to the transaction, there may be some aspects of the contract that will be governed by the applicable domestic law (gap filling). - - [Under the key considerations of international sales: ] **Is it an international sale of goods?** Confirm if the transaction qualifies as an international sale of goods, as this affects which laws and conventions apply. **Relevance of Australian domestic law** Identify the relevant aspects of Australian law that may impact the transaction. This includes understanding how Australian law interacts with international conventions and foreign laws. **Essential elements of an international sale of goods** [Nature of the transaction: ] The transaction must involve a sale, which is different from an exchange, countertrade, or barter. [Definition of 'goods': ] The term 'goods' might have different meanings depending on the legal system. If no specific domestic or international law applies, the transaction is governed by general contract law principles, provided it is not prohibited by the applicable laws. [International element: ] The contract should consider compliance with relevant foreign laws and international standards, particularly in terms of performance, delivery, and other obligations. **Example** [Legal context of an international sale ] Consider the following hypothetical scenario, then reflect on the questions that follow. Scenario A Fijian manufacturer (A) sells bottled FIJI water to an Australian wholesaler (B). The Australian buyer agrees to pay when the goods are delivered in Melbourne. If something goes wrong under the contract, how do the parties determine liability? - - - - **International conventions and domestic contract applications** - - - - - - **5.3 Relevance of domestic law in Australia** **Understanding the role of domestic law in Australia** - - [Understand the key points on the relevance of domestic law: ] **Sale of goods legislation** Australian domestic law can apply to international contracts as long as it doesn't create inconsistencies with international conventions like the CISG. **Supplementing international conventions** Domestic laws are especially important when international conventions do not address certain issues in a contract. **Residual application of domestic law even when international conventions apply** Despite the application of international conventions, various Australian laws may still influence international sales contracts. These including overarching laws such as: - - - - - - - **Understanding the Role of Domestic Law in International Sales Disputes** Explore: *Hi-Fert Pty Ltd v United Shipping Adriatic Inc* \[1998\] FCA 1506 and *Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc* \[1998\] FCA 1007 to understand how domestic law operates alongside international conventions in resolving disputes in international sales. This case was decided under the *Trade Practices Act 1974* (Cth), which has now been superseded by the *Competition and Consumer Act 2010* (Cth) (CCA). [Questions: ] a. b. c. It's essential to consider both because international conventions may not cover every aspect of a dispute. Domestic law ensures that all legal gaps are filled, allowing for a more comprehensive resolution. **5.4 Conventions governing international sales - UNIDROIT** **Application of UNIDROIT Principles in Australia** The UNIDROIT Principles of International Commercial Contracts provide a set of guidelines that can govern international sales if adopted by the parties involved. Although these principles are not legally binding unless expressly incorporated into a contract, they offer a framework for fair and consistent dealings in international trade. In Australia, the UNIDROIT Principles may be applied by courts and arbitrators under specific circumstances, particularly when the contract does not specify a governing law or when interpreting contractual obligations. **Link to principles:** [[https://www.unidroit.org/wp-content/uploads/2021/06/Unidroit-Principles-2016-English-bl.pdf]](https://www.unidroit.org/wp-content/uploads/2021/06/Unidroit-Principles-2016-English-bl.pdf) [[https://www.unidroit.org/instruments/commercial-contracts/unidroit-principles-2016/]](https://www.unidroit.org/instruments/commercial-contracts/unidroit-principles-2016/) [Learn about the application of the UNIDROIT Principles in Australia: ] **Incorporation into contracts** The UNIDROIT Principles can be expressly included as governing law. **Judicial and arbitration use** Judges and arbitrators may rely on these principles, especially in cases where traditional laws provide no clear guidance. **Good Faith and fair dealing (Article 1.7)** By upholding good faith and fair dealing, the UNIDROIT Principles aim to foster a cooperative environment where parties act with honesty, fairness, and respect for mutual interests, thus reducing the potential for disputes and fostering smoother transactions. **Principle:** 1. 2. [Examples ] **Communication:** - **Contractual obligations:** - **Approval of Contracts:** - **Contract interpretation (Article 4.1)** In international contracts, clear and fair interpretation is vital due to differing legal systems and cultural contexts. The UNIDROIT Principles ensure that contracts are interpreted based on the shared intention of the parties, or, where unclear, in a manner that a reasonable person would understand under similar circumstances. **Principle:** 1\. A contract shall be interpreted according to the common intention of the parties. 2\. If such an intention cannot be established, the contract shall be interpreted according to the meaning that reasonable persons of the same kind as the parties would give to it in the same circumstances, the contract shall be interpreted according to the common intention of the parties **Admissibility of pre-contractual evidence (Article 4.3)** The context in which a contract is formed can provide critical insight into its interpretation. The UNIDROIT Principles recognise the importance of considering pre-contractual negotiations and other relevant circumstances to understand the parties\' true intentions. - [Example ] **Usual practices between parties:** - **Trade practices:** - Understanding how domestic law interacts with international conventions is vital in international sales. The UNIDROIT Principles provide a flexible framework that complements existing laws and guides fair conduct in international trade. As we explore these principles, consider their practical application in real-world scenarios, particularly how they reinforce the concepts of good faith, contract interpretation, and the admissibility of pre-contractual evidence. **5.5 Incoterms** **Origin of Incoterms** - - - - - **Understanding the role of Incoterms** By setting clear guidelines for the allocation of risks, costs, and responsibilities, Incoterms aims to reduce potential conflicts and ensure smoother transactions Some key points that highlight the importance and application of incotermsin international transactions. **Uniform interpretation** Incoterms offer a uniform way to interpret trade terms, helping to prevent potential conflicts between parties from different countries with different legal systems. **Periodic revision and updating** The ICC periodically revises Incoterms to keep them relevant to current trade practices. For instance, revisions have occurred with Incoterms 2010 and Incoterms 2020. **Legal precedent** The case of *MW Hardy & Co Inc v AV Pound & Co Ltd* \[1955\] 1 Lloyd\'s Rep. 155 highlights the importance of having clear and uniform trade terms, so each party to the contract understands their rights and responsibilities in relation to delivery. **Contractual incorporation** Incoterms need to be expressly incorporated into the contract, or implied as a matter of customary usage, as established by the parties. In other words, they need to be expressly or impliedly incorporated into each contract to be enforceable. **Enforcement of customary terms in contracts** The following table provides a distinction between public and commercial international law in the enforcement of customary terms in contracts. +-----------------------------------+-----------------------------------+ | Public international law | International commercial law | +===================================+===================================+ | Customary practices in public | In international commercial law, | | international law are widely | parties are free to agree to | | recognised and enforceable across | their own terms and conditions. | | nations. These customs form part | | | of the broader international | Customs or practices are binding | | legal framework that governs | only if expressly or impliedly | | relations between states. | agreed upon by the contracting | | | parties. | +-----------------------------------+-----------------------------------+ **Stages of transportation** The various stages involved in the transportation of goods, including the costs involved. **From the seller:** - - - **On arrival:** - - - [Costs involved in transport: ] The main costs involved in transportation include: - - - - - - Responsibilities and risk of loss: In any international transaction, when allocating shipping responsibilities and considering the risk of loss, it is critical to determine: - - A typical export transaction: The following image shows the flow of transaction in a typical export 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. **Effect of Incoterms** - - - [Essential functions and effects of Incoterms] **Universal language** INCOTERMS not only clarify the responsibilities of each party but also provide a universal language that is recognised and understood across different legal systems and cultural contexts. This universality is crucial in international trade, where varying legal standards can otherwise lead to disputes and confusion. **Carriage of goods** One of the primary functions of INCOTERMS is to determine who is responsible for the carriage of goods from the seller to the buyer. This includes specifying which party is in charge of organising transportation and who bears the associated costs and risks during transit. **Export and import clearance** INCOTERMS also clarify which party is responsible for handling export and import clearance. This involves navigating customs procedures, obtaining necessary documents, and ensuring that goods comply with the legal requirements of both the exporting and importing countries. **Division of costs and risks** Another critical aspect of INCOTERMS is the division of costs and risks between the buyer and seller. These terms specify at what point in the transaction the responsibility for costs and risks transfers from the seller to the buyer, helping both parties manage their financial and logistical planning effectively. **Efficiency in agreement** By using INCOTERMS, parties can quickly and effectively agree on shipping and payment terms. These standardised terms serve as a shorthand for complex international trade agreements, allowing for quicker negotiations and reducing the potential for confusion or disputes. **Express contract terms** INCOTERMS act as express terms in the contract, meaning that both parties explicitly agree to them as part of the overall sales agreement. This ensures that all parties are clear about their obligations, contributing to a smoother transaction process. **Take note** **Key element: The point of delivery** A critical component of INCOTERMS is the specification of the point of delivery. This is the location where the buyer is entitled to inspect the goods before shipment. It is essential for the parties to agree on a delivery point that is convenient and practical for both, ensuring that the buyer has the opportunity to verify the goods before they are transported. #### [Limitations] While INCOTERMS clearly define the point of delivery, they do not address the specifics of how goods should reach this point or the responsibilities of the parties after delivery. These details must be explicitly covered in other parts of the contract to ensure that all aspects of the transaction are thoroughly addressed. **5.6 Pre-Workshop Activity: Understanding international sales contracts and Incoterms** [Hypothetical scenario] A local manufacturer who runs a small hand-craft business in Melbourne is negotiating a contract to sell Australian souvenirs to Bai Yun Inc., a wholesale outlet in Beijing, China. Bai Yun Inc. has specified that the terms of the contract must allow them to arrange and pay for the main carriage of the goods, as they have a long-standing relationship with China Ocean Shipping Co (COSCO). **Evaluate** which Incoterms would be most appropriate for the local manufacturer to consider in this scenario. Use your understanding of ICC Incoterms 2020 and the guidance provided in the [[IncoDocs Trade Guide (PDF 4.8MB)]](https://swinburneonline.instructure.com/courses/5904/files/4429589?wrap=1) Focus on the following aspects: - - - If this Australian business chooses EXW (Ex Works (place), then all except the export packaging will be on the buyer to complete, however, this results in the transfer of risk - at buyer\'s disposal. However, it removes a large part of liability for the Australian business. Additionally, also adopted FOB (free on board). Also Free carrier. **5.7 Activity: Purchase agreement and I

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