1. Law forum Dec.9th 2008 Medical Marketing International, Inc. Internaazionale Medico Scientifica, S.R.L 蔡沛丹 廖诗文 郑雨霆 林浩东 陈秋

2. YOUR SITE HERE LOGO Facts MMI IMS (THE PLAINTIFF) (THE DEFENDANT) Sales contract Of mammography units (US) (ITALY) A dispute arose as to which party bore the burden of complying with U.S. governmental safety standards. The dispute was submitted to arbitration and the arbitrators awarded damages to the plaintiff. MMI bought this court action to enforce the award.

3. YOUR SITE HERE LOGO General legal issue - Whether the arbitration decision should be enforced? Specific legal issues - Whether IMS was in fundamental breach of contract? - Whether the arbitration panel applied the CISG reasonably? Legal issues

4. YOUR SITE HERE LOGO Whether the seller’s breach was fundamental? IMS’s argument IMS’s breach was not “fundamental ” (1) the CISG did not require that it furnish MMI with equipment that complied with the United States GMP regulations (2) the German Supreme Court case’s general rule

5. YOUR SITE HERE LOGO the general rule : under the CISG Art.35, a seller is generally not obligated to supply goods that conform to the public law and regulations enforced at the buyer’s place of business Exceptions in 3 limited circumstance (1)If the public laws and regulations of the buyer ‘s state are identical to those enforced in the seller’s state (2) if the buyer informed the seller about those regulations (3)If due to “special circumstance” The German Supreme Court ’decision

6. YOUR SITE HERE LOGO Arbitrators’ decision IMS was,or should have been aware of the GMP regulations prior to entering into the 1993 agreement The case fit the third exception and the general rule did not apply to this case IMS is obligated to supply goods that conform to the pulic laws and regulation enforced at the buyer’s place of business Art.35 the obligation of the seller Art.25 the definition of “fundamental breach” IMS’s breach was fundamental

7. YOUR SITE HERE LOGO The Judge’s attitude The Judge agreed with the abitrators’ decision So IMS’s breach was fundamental

8. YOUR SITE HERE LOGO The 2nd issue:  Whether the arbitrators applied the CISG reasonably?  Whether the arbitration decision should be enforced?

9. YOUR SITE HERE LOGO Defendant’s argument:  Legal principal-----FAA an arbitration decision is unenforceable the decision should be overruled( 驳回 ) the arbitrators exceed powers violate public policy or manifest disregard of the law The court’s opinion:

10. YOUR SITE HERE LOGO Defendant’s statement process:  the arbitrators “manifest disregard of the law”  misapplied the CISG and refused to follow a German Supreme Court Case  CISG Art.7 : “international character” and “to promote uniformity” Defendant’s argument:

11. YOUR SITE HERE LOGO The court’s opinion:  the court didn’t support the defendant  it is clear from the arbitrators’ written findings  the arbitration decision was decided under the 3rd exception of the German case  the general rule didn’t apply to this case  so, the arbitrator didn’t “manifest disregard of the law”

12. YOUR SITE HERE LOGO  The 2nd legal issue is solved  The arbitrators has applied the CISG reasonably  The arbitration decision should be enforced  The defendant IMS should pay $357000 to the plaintiff

13. YOUR SITE HERE LOGO - 1, The defendant’s breach was “fundamental”. - 2, The arbitration panel applied the CISG reasonably. - 3, The defendant should enforce the arbitration decision. Decision ﹛

14. YOUR SITE HERE LOGO Comment ---- introdution of the German case German health authority A Swiss seller German fish importer (buyer) Mussels （贝类） refused to pay high cadmium （镉）

15. YOUR SITE HERE LOGO The German Supreme Court’s opinion  Swiss seller was not in breach of contract  The general rule (according to CISG,art.35)——Three exceptions  The buyer had lost the right to rely on the lack of conformity. CISG,art.39(1):The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.

16. YOUR SITE HERE LOGO Thank you! Love your life May you a happy day