1. Asante Technologies,Inc. v. PMC-Sierra,Inc 164 F.Supp.2d 1142(2001) United States District Court Presented by Presented by 陈晓 何晓婷 林玉姗 梁庆 李冠华

2. The first part : Facts Plaintiff : Defendant : Asante (U.S) PMC (Canada) Defendant’s Oregon branch (U.S) Defendant’s authorized distributor: Unique Technologies (California U.S)

3. Asante’s order Unique Technologies PMC throughto PMC’s confirmation “shall be govern by the law of the buyer’s address” “shall be construed according to the laws of Canada ”

4. Unique Technologies Asante Payment Invoices resale

5. PMC Asante File suit in California state court Federal court Is transferred to Remand back to state court

6. The second part : Legal issue 1. Which law should be applied to in this case ? 2. Whether the federal court has jurisdiction over this case ?

7. The third part : Reasoning Applicable rules: If a party has more than one place of business, the place of business is that which has the closest relationship to the contract and its performance.

8. Reasoning PlaintiffJudge Unique acted in the United States as an agent of defendant. 1 A distributor of goods for resale is normally not treated as an agent of the manufacturer. 2 Plaintiff has no evidence.

9. Reasoning 1 Defendant’s breaches of representation. 2 Plaintiff’s fax to defendant. 3 Plaintiff directly corresponded with defendant. 4 Plaintiff has no representation emanating by defendant’s Oregon branch.

10. British Columbia, Canada 1 Unique is not the agent of PMC 2 Plaintiff corresponded with defendant in Canada 3 Plaintiff has no correspondence emanating from defendant’s Oregon branch 4 Sales and marketing office; Principal warehouse; Design and engineering functions Reasoning

11. There are three conditions if The CISG is applicable: (1)The commercial sale of goods (2) Between two parties whose places of business are in different countries (3) The places of business are located in countries that have ratified the convention. The applicable rules to this case is the CISG. Reasoning

12. Reasoning 2: The parties may exclude the application of this Convention…… If two parties want to opt out of application of CISG, then they have to evince a clear intent.

13. In this case 1plaintiff ----purchase order the laws of California defendant --- confirmation the laws of Canada

14. 3 The “Terms and Condition” of both parties are inadequate to effectuate an opt out of the CISG. That means: The choice of law here do not evince a clear intent to opt out of the CISG. CISG Canada law US law 2 America and Canada have signed and ratified CISG  part of the two countries’ domestic law

15. Reasoning 2  Legal issue  Whether the federal court has  jurisdiction over this case ?

16. Federal Preemption  It is implied in the supremacy clause of Article VI of the Constitution.It applies to matters which are considered to have such a national character that federal laws must supercede （优先于） state laws with regard to them.

17. the CISG preempts the contract laws of U.S.states? The expressly stated goal of developing uniform international contract law to promote international trade. Advantages of the CISG in international transaction.

18. Exclusive federal jurisdiction=Preemption?

19. decision  Both of the federal court and the state court had concurrent jurisdiction over the case  Legal for federal court to hear the case

20. comment 1. apply or not  Apply  Apply if it meets ： （ 1 ） commercial sale of goods （ 2 ） between parties whose places of business are in different countries （ 3 ） the said countries have ratified the CISG

21.  Unless ： Clear agreement on choice of law clauses From both parties e.g. para7 ： selection of particular choice of law…exclusion of the CISG comment 1. apply or not

22. Comment 2.influence of the decision  the decision can be cited as in case law country  Establish a system e.g. Marbury v. Madison ， 1803 system of scrutiny of constitutional violation

23. Comment 2.influence of the decision Show appreciation on the purpose of the CISG （ to prompt international trades ） Make the CISG wider known and applied In this case