2013年贸仲杯比赛现场记录(华东政法vs山东威海)

杨小川Beijing law frim
Respondent先开始10min jurisdiction
1.statement of facts
eye contact; picture;
2.jurisdiction
no arb agreement was reached.
1.standard is valid. not negotiated. interpreted strictly,对买方有利. replaced by fsa.
2.rdc in fsa is void. common intent uncitral ; arb and litigation ; intention interpret
according to negotiation. government---only court; art 23 of principal; review and appeal render the whole contract invalid.
3.sla no arbi agr. no show intent to include; show expend; limited transaction, unclear. art
46 fas govern sla. replace the whole clause
3.consolidation
commercial viability; ability relied on fsa enginerring;
diferent law and arbi clause; 10 cepani;
arbitrator diff expertise
1.both clause is valid
1.arbi valid. fas clause; not damage 3 result of consensus; party autonomy;
2.46 of sla standard; new included. has fulfilled duty; p37-5-1, informed re:English,website;
re fail to review
2.consolidation
art 13 cepani. no exclusion
art 13 cepani compatible. p5-4-5, fsa future cooperation. art 13(2)satisfy the 法条,
what is the basis for cepani?
10 juridiction
13 consolidation
who make the decision of consolidation?
tribunal. official commentary art10 two factors automatically consolidated
fas invalid contadics final and binding
justice NY
正方
autonomy we consider their government
has the will and fulfill
standard 10 cepani
fas 4 contradicts 3, did re object arbi when negotiating?
Did re know this will render the arbi agreement invalid? no lawyer
party autonomy, affect the nature, autonomy can extend the arbi. contact.
dispute resolution clause. us court of appeal
23(6) effect the validity of arbi agreement?
no, not substantially deprive buyer; seller high risk of payment; not excluding buyer’s right but emphasize the seller’s right.
new standard terms included what way to disclose and inform? are they sufficient?
final meeting; finally provide the English version: website.
MERITS
正方
facts
mixed contract address two submissions
1.new standard included
the law of M，1(1)
6 not express the exclusion
implicit, no question when negotiation show no intention to exclude the CISG
2.sale of goods fall within
mixed contract, coverd…..
art 3-subsesion1 in light of. medical data and trials, materials only refer to tangible ones. not
a substantial; sla-5 largely develop; market value at 1.5,
art 3-subsession2, payement for equipment and software, somartphone and computer, software in the equipment when selling, automatic dominate part,
the purpose of the contract is crucial, fas framework govern sla, purchasing the treatment room
every reason to believe
we firmly believe undoubtedly
反方
not explicitly included in the fsa
purpose restrict the interpretation to the other party
“national”
unfairness no consensus
not promise, no intent, unacknowledged by re; not received; no obligation to inform itself; no time to doubt the content; no major change;
good faith, no major change;
license is not sales
preponderant--economic value
层次太多缺manner和eye contact
intention not from contract and behavior.
data intangible.(反方可以案件说明)
no major change不等于no change
art3-2 preponderance proportion of price vs. how to preponderant case law or other baises? software attached to equipment, price （反方应该反驳development不是services）discounted price? original price?
can’t reflect the real value
who comments the tangible? 反方律师说的（太弱了。

）
Did you know uncitral?(没到点上啊。

)
how explain the national law?
re did bot express the intention to exclude the CISG
what will cl do to have the standard terms included? 你觉得claimant应该怎么做才能include the standard terms?
声音小
那如果没有included in ，你想怎么办？你本来想选什么法？
How to value the change? major or minor? Claimant 放在网上的够了吗？
Do you think there is a major change?
terminate or influence the commercial relationships and cooperation
But change from the national law to the law of M?（实际上就是第三部分的问题）
反方additional explaination
正方：
1.re only asked about the liability regime
English version on website is sufficeient. re duty to check the website.
party autonomy
2.。