LAW

Question	Answer
CISG applies to	the sale of goods, licensing and foreign investments between parties whose place of business are in different states: contracting states or when private international law leads to apply the CISG.
CISG entitles to	seller being paid, buyer receiving goods t the right time
CISG doesn't apply to	validity of contracts, passage of ownership, liability of death and personal injuries
CISG - Hybrid transaction	Consider sales the supply of goods to be produced or manufactured UNLESS a substantial part of the goods to be manufactured as supplied by the buyer.
CISG - Express exclusions	CISG doesn't govern sales to consumers, sales of ships, vessels, aircrafts, stocks, shares, money, potential goods (to be harvested)
CISG - Software transactions	CISG is applicable for computer/hardware but not software
CISG - Parole Evidence rule	The "PER" is only a common law rule used in contract cases. It prevents a party who signed a written agreement to provide evidence that the contract was preceded by prior negotiations that can contradict what the parties reflected in the signed agreement.
CISG - Plain meaning	"Literal rule" that is used in interpretation of common law courts
CISG - Implied covenant of good faith	General presumption that the parties to a contract will deal with each other honestly, fairly and in good faith
CISG - Ambiguous provisions against drafter	in an ambiguous case of contractual term, the interpretation will be one against the interest of the drafter. to encourage a clear drafting
CISG - form of contract	the contract for the sale of a good doesn't' need to be written, no requirements for the form. can be proven by witnesses. BUT local law governs the form requirement
CISG - formation of contract	a contract is concluded at the moment when an acceptance of an offer becomes effective in accordance with the provisions of this Convention.
Revocation	Common law => freely revocable until accepted Civil law => irrevocable and binding CISG => until contract is concluded an offer may be revoked if revocation reaches offer before he has dispatched an acceptance
CISG - acceptation	statement or other conduct indicating assent is an acceptance, silence isn't.
mailbox rule	common law rule - the offer is accepted at the time the acceptance is mailed and this is when the risk of loss passes on the offeror. no more revocation possible when the acceptance is mailed
CISG formation rule	different from mailbox rule - the acceptance is not effective until it reaches the offeror within the fixed time frame.then passes the risk
CISG - Battle of the forms	Last shot => the seller's from is preferred other approach => shipping is acceptance Knock out rule => diverging terms are knocked out (replaced by UCC standard terms) and basic elements are kept ART 19 => if buyer and seller's terms differ on material terms there is no offer nor acceptance, if not on material term there is acceptance
CISG - risk	buyer has the risk of loss during the transportation by carrier, unless the contact provides differently. risk passes to buyer when seller delivers good to carrier. !!! Not passage of title !!!
Incoterms	Incoterms, developed by the International Chamber of Commerce, is a set of rules (not laws) that agreements may incorporate to specify parties’ respective rights and obligations pertaining to transportation and delivery of goods (and not just internationally)
Incoterms - FOB	- Seller must load the goods on board the vessel arranged by the buyer at named port of shipment - Seller bears the cost/risk of inland transportation until goods are loaded - Suitable for sea-transportation
Incoterms - EXW	- Minimum obligation of the seller - Seller must only tender the goods by placing them at the disposal of the buyer at seller's location - Suitable for all modes of transport - No obligation of transport or insurance
Incoterms - CIF	- Seller must pay the costs and freight required in bringing the goods to the named port of destination - the risk of loss or damage is passed from seller to buyer when the goods are loaded - Seller must pay insurance against risk of loss - seller provides a transport document for buyer to claim goods form the carrier and to sell the goods to subsequent buyer. - Seller obtains BoL from carrier and passes it to buyer through banks - payement is done against document
Incoterms - DDP	- Highest level of responsibility on seller - delivery + passage of risk when goods are placed at disposal of buyer destination - buyer is only responsible for unloading the goods - seller must deal with import duties, license, terminal charges, customs, risk and expense
Bill of lading	Document of title that entitles the holder to obtain the goods from the carrier. Ensures the delivered goods are paid for. A straight one is issued so that only the consignee has the right to obtain goods. A negotiable one implies that whoever has a BoL has the right to receive to goods.
Letter of Credit	it engages a 3rd party in order to mitigate finance risks. the transaction with LoC comes through a series of contracts. its a confirmed, irrevocable and legally binding promise that the buyer's bank will pay when there is evidence that the goods have been shipped. the seller receives payment before the buyer pays buyer's bank which pays seller's bank.
Sales agents and distributors - exclusivity/territory field	activity shall be carried out exclusively in the territory designated and not beyond
Sales agents and distributors - agent's obligations field	1. The agent shall look after the principal's interests, shall promote the goods in the territory and will act on behalf of the principal and shall pass any offer received to the principal. 2. agent can't receive payments in name of principal without authorization 3. agent shall keep principal informed of his activities.
Sales agents and distributors - principal's obligations field	1. the principal shall remunerate agent according to the commission and terms of payment 2. principal shall not reject offers by agent unless doubt or image issues or non-respect of minimal orders 3. otherwise its breach of contract
Sales agents and distributors - distributor's obligations field	1. the distributor shall not obtain any of the goods for resale from any other person other than the supplier or seek customers for any other goods 2. distributors must use best efforts to promote, market, distribute the goods across territory and update business plan annually.
Sales agents and distributors - suppliers' obligations field	In case of exclusivity the supplier shall not seek any other distributor for goods on territory or supply other person.
Sales agents and distributors - minimum order field	The agent will have to meet the annual minimum order. if orders not met at end of year, the principal shall be entitled to terminate this contract on territories where promotion was low. The Distributor (unless Force majeure) shall order the minimum quantity of goods.
Sales agents and distributors - IP rights field	the supplier grants the distributor the right to use in the territory for promotion/sale the supplier's trademark details, patent, copyrights, design etc.
Sales agents and distributors - Non competition field	agent undertakes to not compete with the principal or to enter into any business relationship with competitors of the principal for the entire duration of the present contract. to not represent, manufacture, produce in the territory any products identical. can extend this after termination of the contract.
Sales agents and distributors - indemnity on termination field	The agent will be entitled to receive a termination indemnity based on the average annual commissions after notifying the principal. this doesn't apply in case of breach or if agent assigns someone to replace.
Sales agents and distributors - consequences of termination field	the supplier shall be entitled to repurchase from the distributor goods at invoice price or value in books of distributor (lowest). At the it's expense, distributor shall send any samples, advertising/promoting material relating to the goods. the distributor shall cease using IP rights
Sales agents and distributors - other contractual rights - Hardship clause	if performance for one of the partie becomes too expensive, the party is still bound to the contract unless the circumstances are unexpected and alter the equilibrium (excessive burden on one party), then he can request revision.
Sales agents and distributors - other contractual rights - entire agreement	no party has entered the contract in reliance to any representation, warranty of the other party not mentioned in the contract. the contract supersedes any previous agreements.
Sales agents and distributors - other contractual rights - supply of goods	sets forth the obligations of the parties about the sale and purchase of the goods.
Sales agents and distributors - other contractual rights - procedure for ordering the goods	clause governs timing and mechanics to permit the order of the goods. distributor has obligation to buy a minimum. may be a provision traduce the price.
Sales agents and distributors - other contractual rights - price of the goods	usually set forth in a price list attached to the agreement from supplier to distributor
Sales agents and distributors - other contractual rights - warranties related to the goods	supplier warrants that he has good title to the goods and that their resale will not infringe the patent, the design, the copyright, IP and complies with regulations.
CISG - applicability	it is applicable to individual sales contracts (made when goods are supplied to distributor) but not the whole framework distribution contract.
Franchise definition	It designates the practice of leasing for a prescribed period of time the right to use a firm's business model, brand and trademarks. also defined as the contract by which a franchisee is granted by a franchisor the right to market goods and services under particular conditions. the risk of loss is on the franchisee and the franchisor is compensated with royalties, obligations to buy
Requirements to register a trademark	Legal order: mustn't go against public policy New order: different from another registered TM Distinctiveness order: issue of generalized products Not deceptive: can't create false expectations from consumers Some jurisdictions may require a trademark to have been used prior to registration and some just bona fide intention
Copyright	franchise agreement that requires sharing lots of important info essential to the business model that needs protection but can't be registered as a TM
Trade secrets	valuable info and confidential business info that can't be protected by TM, copyrights, patents and gives competitive advantage to the company. may be formula, recipe, pattern, compilation, program, technique.
Quality controls	keep quality and standard product. coordinate advertising and pricing.
Patent	A patent is the territorial grant of an exclusive right limited in time to make use or sell the patented invention without permission of the patentee. the exclusive rights lasts 17 years and then the product falls into public domain. the requirements are that the patent must be lawful, new, non-obvious and useful.
Branch	it's not a separate legal entity
subsidiary	Separate legal entity wholly owned or controlled sometimes with minority shareholders. there are opportunity reasons to set one up (tax/strategy) or legal requirements.
Incorporation theory	It determines the applicable company law by reference to the country in which the company was incorporated and registered. It does not restrict freedom of establishment in any way, forum shopping is allowed.
Real seat theory	It determines the applicable company law by reference to the location of the real seat (head office = majority of stakeholders, societal interest's best server). no forum shopping, not possible to separate central administration from registered office.
Forum shopping	practice adopted by litigants to get their cases heard in a particular court that is likely to provide a favorable judgment
Corporate veil	legal concept that separates the personality of a corporation from the personalities of the shareholders and protects them from being personally liable for the company's debt and other obligations. lift of veil in case of unlawful activity.
Joint ventures	Refers to any business organization with several shareholders with more or less equal power. made of local partners, voluntary, mandatory. transferability of shares, governance issues and effects in different jurisdictions are addressed in the shareholder's agreement.
Ownership & Control	Investor owns 100%: no question on control/ownership Multiple owners: depends on nationality of investors and incorporation state 50-50%: uncertain but one may be owner of the proxies or have a veto right <50%: control is management agreement and not equity split
Shareholders' agreement - object	regulating the exercise of their rights. only the shareholders who executed the SA are bound by it
Shareholders' agreement - shares' transfer restrictive stock transfer agreements	way to mitigate the risk of shares transferred to unwelcome new investors. it maintains existing balance of power among shareholders. it protects minority shareholders against changes in company's structure BUT shareholders become prisoners of the corporation; some shareholders acquire a position of strength; it contributes to separation of ownership and control.
Shareholders' agreement - Right of first order	before transfer of shares to 3rd, a shareholder must offer the shares to the other parties of the SA who have a call option on those shares. Right of first option (price calculated) or right of first refusal (price in SA)
Shareholders' agreement - Russian roulette	if a shareholder finds. potential buyer willing to buy the shares, if requested, he must purchase other shareholder's shares under the same conditions as sale. this is to protect against new shareholders
Shareholders' agreement - consent restraint	before transferring shares to a 3rd, the alienating shareholder must obtain consent from others.
Shareholders' agreement - Limitations to certain buyers	criteria are set to whom the shares may be transferred to. careful with discrimination and lawfulness of this
Shareholders' agreement - Lock up	Prohibition of share alienation, transfer (word to be determined). the time is capped
Shareholders' agreement - tag along	if a majority shareholder sells his shares, minority have the right to tag along the sale and sell their stake at the same conditions. Majority must ensure the due process.
Shareholders' agreement - drag along	obligation of minority to sell shares jointly with the seller to. buyer under the same condition
Shareholders' agreement - voting agreements	Common type of contract Previous consultations agreements: shareholders agree to consult before any occasion to vote to facilitate the adoption of a shared voting strategy Unanimity agreements: shareholders bound to vote in the shareholders' meeting according to outcome of a pre vote (must have all agreed) Majority voting pact: shareholders bound to vote in the shareholders meeting according to outcome of pre vote but with binding majoritarian decision.
Shareholders' agreement - disclosure/duration	transparency is important to protect shareholders the duration limits the SA so that the shareholders can decide if they want to continue after 3/5 y
Merger procedure	1) both BoD must approve the merger and project 2) Shareholder's meetings must also approve 3) deed of merger must be filled and filed with public register
Exchange ratio	How many shares shall be given to acquire the company? it is determined based on fair value
Merger litigation	if the pricing was unfair or if there are any conflicts of interest May have monetary damages, postponing of merger; appraisal of merger value
LBO	being corporation obtains a loan to have the financial facility to buy the target. do this through an SPV, target is merged into it

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	Created by Lottie Buschiazzo almost 7 years ago