Importing Watches to Alberta from Taiwan

Terms to include in the sales agreement for import of watches to Alberta from Taiwan:

Description of goods: May choose to include UN Standard Classification of Goods description as well as make, model number, colour, serial numbers, etc.

Section: 8 - Miscellaneous manufactured articles
Division: 88 - Photographic apparatus, equipment and supplies and optical goods, n.e.s.; watches and clocks
Group: 885 - Watches and clocks
Subgroup: 885.3 - Wrist-watches, pocket watches and other watches (including stop-watches), with case of precious metal or of metal clad with precious metal
Basic heading: 885.31 - Wrist-watches, battery or accumulator powered, whether or not incorporating a stopwatch facility

Measurement of quantities: Specify number of units or pieces. Negotiated result: Agrees to buy higher volumes on lower unit costs.

Purchase price: Unit and total prices identifying currrency of payment. Canadians might naturally seek to pay in Canadian dollars to avoid exchange-based risk. May seek US currency as concessionary currency of payment. Negotiated result: Taiwanese agrees.

Time, place, method of payment: Open account the buyer's preferred method of payment. Negotiated result: Compromise draft on L/C.

Quality standards: Rolex logo watches should be certified original or risk confiscation for trademark or intellectual/property rights infringements at Canadian customs. Any and all watches should be provided with certificates of authenticity in such a case or be branded as counterfeit. Negotiated result: Taiwanese agrees.

Origin of goods: Certificate of origin required especially in the case of third party transhipments via Taiwanese broker. Negotiated result: Taiwanese agrees.

Specified trade terms: Would prefer CIP or DDU/DDP. Compromise met with CIF.

Warranties: Specify sellers obligations and consequences in failing to meet them. Negotiated result: Taiwanese agrees to meet or match manufacturer's warranty.

Force majeure: Provisions for Acts of God are not in the importer's interest. Negotiated result: Taiwanese insists with CIF.

Provision for acceptance: Vaildity deadlines on all offers made to the Taiwanese exporter required. Negotiated result: Numerous counter-offers reciprocated until final deal is reached.

Taiwanese exporter's preferred sales agreement:

Description of goods: No problems with UN Standard Classification of Goods description if these are legitimate products.

Measurement of quantities: Ideally would like to see higher prices for lower volumes.

Purchase price: Would prefer pricing in New Taiwan dollar to avoid exchange risk.

Time, place, method of payment: Cash with order, or draft against L/C preferred method of payment.

Quality standards: No problem certifying bona fide watches with certificates of authenticity but will charge more for the cost of certification.

Origin of goods: Certificate of origin not a problem for Taiwanese broker but it will cost more.

Specified trade terms: Would prefer FOB.

Warranties: Will only offer warranties for higher unit prices.

Force majeure: Provisions for Acts of God absolutely in the exporter's interest on CIF terms.

Provision for acceptance: Might like to make many counter-offers prior to acceptance.

*Should the contract between Sam and Rachel be governed by the Vienna Sales Convention?*

Rachel might seek to govern the contract by Canadian or common laws only as The Vienna Convention appears to favour the seller in terms of limitations on rejection of goods.

*Does the Convention automatically apply?*

No it does not as Taiwan has not signed it.

*What wording is necessary to exclude it?*

Excluding The Vienna Sales Convention: "The parties specifically exclude the application of the provisions of the Vienna Sales Convention." Rachel might like to include, "The Domestic Law of Alberta shall govern this contract." However the Taiwanese may not go for that.

*Do any concerns arise if the watches bear the “Rolex” logo?*

Yes, certify, certify, certify or else expect it to be a fake. Rachel would have to be a fool to deal unless Sam is an authorized or affiliated Rolex dealer in Taiwan. According to Rolex only authorized dealers may display the offical authorized dealer plaque which itself might be easily forged as well the Rolex itself must have authorized COSC (Swiss Official Chronometer Testing Institute) testing results.

Statements Regarding the Vienna Sales Convention

Statements Regarding the Vienna Sales Convention

Statement One: Laws, laws and more laws! How many do we need? In the long run, the Convention will just increase conflict and litigation.

Answer: Probably false. The explicit intention of the Vienna Sales Convention is to harmonize and create a common set of laws among a rat's nest of national laws to encourage international trade among signatory nations.

Statement Two: We understand each other. We've been dealing with each other for years. Sometimes we're late filling orders; sometimes they're late making payments. No problem! We don't need any newfangled Convention to tell us how to do our business.

Answer: Probably true. Our text expresses exclusion of Vienna Sales Convention may be preferred where parties have long-term established contractual relationships which would be disturbed by imposition of new laws. However it would depend on which countries the buyers and sellers are located as it automatically applies in signatory nations.

Statement Three: Our suppliers are a tricky bunch. That's not to say we can't always trust them, just that we have to inspect every order very carefully. If the quality is off, or the design is wrong, back it goes. Bur that situation will improve, now that we've opted in our new contracts for application of the Convention.



Answer: Probably true. The Vienna Sales Convention does specify that goods must conform to contract and be fit for purposes of intended use, those expressed or implied by seller, are identical to samples and properly packaged. It also includes terms of examination and notice to the seller of any problems as soon as possible. Examination terms do not exist in Canadian common laws so if this practice was taken in previous contracts it was not supported in any way other than rejection of goods. It appears likely that suppliers will remain tricky and limitations exist on rights to terminate the contract due only to fundamental breaches or delivery deadline delays aas The Vienna Convention appears to favour sellers.

Statement Four: Our plants here in France do regular business with our cousins in Quebec. Our contracts are standard. We had our lawyers draft them years ago. Never saw the need to change them. Drafting in provision for the Convention would be more trouble than it's worth.

Answer: Probably false. The Vienna Convention applies automatically as both countries have signed it. Statement Four eats crow.

The Vienna Sales Convention: History and Perspective, Kazuaki Sono, Secretary of UNCITRAL, Vienna

Report: Unpaid Seller's Rights or "Grab the Pants"

Report: Unpaid Seller's Rights or "Grab the Pants"

I did read the book, "The Eatons: The rise and fall of Canada's royal family" by Rod McQueen about five years ago. Unfortunately I lent it to a friend since then and cannot make specific quotations directly. Eatons was run into the ground by departmental competitive pricing at suppliers and sources where bulk purchases might have reduced wholesale prices. In terms of push and pull Eatons spent its history pushing and pulling its own prices up. Inefficient management particularly among the last remaining Eatons, who McQueen described as fairly incompetent in terms of family affairs, managed the business with the adage, "from shirtsleeves to shirt sleeves in three generations," which would not be far off the mark.

An internet search turned up this snippet or fragment of documentary reference to the Hilfiger seizure of assets including a reduction of 33.34% discrepancy in comparative asset values:

Eatons wants seized goods back: sources
Article Abstract:

Insolvent department store chain T Eaton Co Ltd is seeking to force Tommy Hilfiger of Canada Inc to return C$400,000 worth of merchandise which the supplier took back from Quebec stores under seizure before judgment ruling a day before Eaton filed for bankruptcy protection. Eaton wants to get the goods back so that it could be sold during its liquidation sale. The court ruled that merchandise that had already been ordered before it got bankruptcy protection on Aug 23, 1999, could be sold as part of the liqudation sale.

author: Strauss, Marina
Publisher: Bell Globemedia Interactive
Publication Name: Globe & Mail (Toronto, Canada)
Subject: News, opinion and commentary
ISSN: 0319-0714
Year: 1999



Apparently a conflict of legal interpretations on the terms of "unpaid seller’s rights" occurred as this article indicates. According to Canadian bankruptcy law Eatons was within rights to attempt to sell the merchandise at liquidation prices. However whose court decided this? Were they in Quebec? Probably not.
I smell Toronto. Somebody had their Quebec sales laws wrong.

However as Hilfiger is an American company their interpretation of the terms of contract are possibly also at legal odds. Furthermore US Sales of Goods Act may expressly permit seizure of goods at any time as the terms of payment may have been broken, thus a condition of sale or transfer of title may have been made void. Also prescient was the seizure of the goods in question prior to public announcement of insolvency which leads possibly to questions of insider information. It was probably a time for many sellers to, "grab what they could and run screaming for the exits."

Attornment agreements may have been in force under US trade contract laws rather than Canadian ones and Hilfiger may as well have been completely within their rights on terms of credit past due payments and/or installment sales in Quebec Civil Code Article 1746, QCC. Under such Quebec Civil Code terms Hilfiger retained ownership rights until payment in full had been made. This is what leads me to suspect court proceedings on bankruptcy were not taking place in Quebec but probably Ontario. Toronto to be specific - a city of lawyers sans la langue française?

However Hilfiger probably extended credit without advanced payments for some time prior to seizure but upon doing the math may have realized that they faced the likelihood of not being paid outstanding for the goods. A hypothec agreement would have ensured repossession options on the clothing as moveable property under Quebec sales law if it was in the contract. If it was not it might have been implied. Under such terms as well and as without them under conditional sales terms, instead, also in Quebec, Hilfiger appeared within contract limits to make repossession especially prior to bankruptcy protection if payments terms had been breached. Maybe that is why they repossessed goods in Quebec rather than other provinces which possibly do not have these conditions and could not thus either be enforced under contract or implied under terms of supplementary laws. In other words, "what a rat's nest!" Somebody at Hilfiger was reading French.

At that point as described in the previous article, T Eaton Co. Ltd. was liquidity and cash poor as well as debt laden. Any litigous proceedings would have probably been in a line up as long as Eaton's company buyers (all at the same counter of suppliers driving each others costs up and profit margins down for decades gilleting the company) and extended far beyond the company's viable credit line or indeed its corporate existence prior to buyout. Eatons Ontario inspired bark may have been far beyond its Quebec-uable bite. Maybe this was the point of it all. Perhaps the re-purchaser of the re-possessed products was in fact none other than Sear's Canada, a local rival, kindly willing to swallow the weakling Eatons whole kit and kaboodle for pennies on the dollar.

Unjust preference: Perhaps this was the case in Eatons liquidation strategy as similar preferences appear to occur globally and locally as in the Daewoo Corporation post IMF Crisis- sell off process which dragged on for years rewarding local creditors with 70% of their debts outstanding while foreign creditors garnered a whopping 30% on larger comparative bills outstanding. Why would Hilfiger wait around if they knew they would not get paid by a bunch of querrelous Canucks? I would grab the pants and run as well.

Fraudulent conveyance: Eatons may have intended to separate sales losses from bricks and mortar assets through sales to a retail real estate holding company at some point and this could have been an attempt to squirrel away assets from ravenous creditors. Another reason to grab the pants first.

Bulk sale: This may be exactly what Sears did and then part sales of outstanding real estate assets could take place to repay creditors. However as our text describes this as a Sales Act in Ontario, it would be quite convenient if this is what almost happened. Ontario would represent the majority of population of Eatons customers and thus probably also probably also the highest concentration of saleable Eatons assets.

By the time Eatons was ready to keel over everyone got their piece (as I remember reading) even on sales flyers and discount sales. Price promotion plans which were intended to be limited to certain product ranges to raise quick operating cash fell to the hordes when, due to fine print errors, ridiculous discounts were applied across entire housewares, appliances and durables departments which quickly killed the dying company in terms of movable saleable assets selling below cost. Sellers who had not exercised their rights were probably kicking themselves. Grevious errors in strategy, terms of goods purchases and sales contracts doomed that sinking ship to history for decades prior to its demise.

Timothy Eaton will probably roll and churn in his grave for eternity.

Financing Options on Exports of Earth Moving Equipment to the UK

Financing Options on Exports of Earth Moving Equipment to the UK

Fortunately Joe Jaroslovsky at Ace Equipment has many financing options for securing payments on his earth moving equipments however they increasingly reduce his risk coverage beyond payment prior to sale at zero risk and letter of credit with insured coverage which highly impacts risk, rejection, price and rights of action terms which need to be juggled for the most profitable least risky mix.

First, if the importer is absolutely desperate for the goods, the firm may agree to documents against payment by sight draft which would require up to 3 months storage in a secure facility in the UK which would provide assurance that the products had been shipped while dependent entirely on Ace Equipment to ensure quantity and quality of goods. In addition it would secure title transfer risk for Ace. This would imply that purchase price was being met by alternate sources of income other than the sale of the moving equipment during the 90 days credit period which would also make Mr. Jaroslovsky more comfortable (unless the Brits were planning on taking on expropration projects on papal property). However the importer is indicating through credit terms request that they would seek to sell the products to a third party to earn those profits to pay the purchase price in full (contingent upon sales) in making the credit request.

Next, credit may be extended by documents against payment by time draft however risk increases to Ace Equipment as British firm may reject delivery or refuse to sign the time draft at importer's bank or fail to pay in full upon maturity date of 90 days. Again, title risk transfer prior to payment is avoided and the importer will be again dependent entirely on Ace Equipment to ensure quantity and quality of goods which could provide risk of rejection. Open account is another option however unsatisfying to Ace Equipment without a transaction history with the British firm. It would be like opening Mother Hubbard's cupboard to the wolves. It should not be done.

A consignment contract would ensure payments made contingent upon sales. However returning a heavy crane or backhoe to Canada unsold would be an albatross in terms of freight rates. Credit terms would imply fewer discounts on the total charges for these products as Ace prefers cash and knows, "Cash is King."A hybrid contingency contract which challenges boiler plates might be considered. Partial advance payments and monthly percentage of sales payments schedule could be proposed. The importer might go for it especially if an attached costs break down in terms of partial order shipments could be made up. As well terms for meeting a projected monthly sales schedule in England would prove useful as Ace would prefer these movers keep moving and not clutter up the sales lot. Agreeing to such terms would be concessionary. Ace would move product slowly at first and more quickly later on based on speed and turnover of UK sales inventory.



Barter might also be an option. Do the importers possess any goods which would be of use to our manufacturing facility at market reduced prices? Are there by chance any retired or traded-in excavators ready for the shredder which might well service our blast furnaces at throw away prices during this commodities market melt-down? Factoring or forfaiting might also be possible as England is far from being a developing country slow to recessionary growth notwithstanding. Possible export credit insurance from EDC and direct loans to the importer may be available to reduce overall risk. (All from John R. Jagoe's, Export Sales and Marketing Manual 2007)

Reservation of titles and security: Taking control over the importers assets might be the most prudent request according to our text and would not be a high risk for them unless they had no secure buyers for our excavators upon point of acceptance. It would be a quick resolution to a credit problem and would easily reveal their level of commitment to and certainty of purchase. Chattel mortgages as applied in Canada however would not satisfy the full terms of 90 days credit. Some other more extensive mortgage holding terms on listed assets might be required to meet extended credit deadlines. However this would leave us open to contentious UK property rights laws.

A consignment agreement and/or agency agreement might also be a practical solution and would ensure a percentage of sales income for the importer. However this would require Ace Equipment to fully research the UK market to ensure that this particular importer would make the best agent or consignee and whether or not the equipment market is strong enough to ensure purchase of our products there. The importer's full disclosure of its financial standing and current sales records might be impressive enough to make minimum stocking orders a reality following a first successful sales record on their request terms contingent on adequate or superior performance as rights of action. Conversely, the importer's balance sheet and assets might send Jaroslovsky running for the hills.

This credit request might just be an indicator of necessary export market development in the UK unless this is a one off sale. Making a quick deal could be the worst move Jaroslovsky could make. Following the global success of Caterpillar, Ace might prefer to develop a solid distributor and/or dealership network in the UK themselves as a benchmark to their future performance there and reap the profits of the middle man as well. This would require a cooling of Jaroslovsky's heels. This buyer might represent a future agent or distributor or might not. How willing are they to negotiate payment terms for this contract? No sales at any price or without weighing the risks and opportunities. Maybe its time to get a new salesman?

"Caterpillar Realized It: More Effective Frontline Leaders" (DDI)

Case of "Mashed Potatoes."

Case of "Mashed Potatoes."

Charles Mash, a British potato dealer, bought Cyprus potatoes from an importer, Joseph Emanuel, while the goods were in Cyprus. When the contract was signed the potatoes were in good condition. But when they arrived in England, they were good only for pig food.Did Mr. Mash have to pay the full price?

While they are described as in good condition when the contract was signed, how do we know they were not designated as pig food to begin with? Unless we can read the contract terms the specific description of this product is unknown. All we know is that Mr. Mash was expecting something better.

Mr. Mash's obligations to pay or not for these pig food products are determined by the contractual governance of transfer of risk or title if not designated under British laws then under the Vienna Sales Convention. Mr. Mash's requirements to pay are dependent not only upon his opinions on the condition of the product but upon the point of his legal ownership which must be specified in the contract:

Risk: At what point did Mr. Mash acquire the products?

Rejection: Has Mr. Mash accepted ownership prior to the point of recognizing that the quality of these products are not as were agreed? That would be foolish.

Price: If Mr. Mash has already taken ownership but refused to pay for these products he may be sued by the Cypriots unless they have blatantly failed to meet contract conditions.

Right of Action: If he has accepted ownership and paid for the potatoes perhaps he may sue for damages. However his success would depend upon well specified conditions and contract terms.

Have these spuds been ascertained prior to purchase? Were specific terms of the contract inclusive of title transfer only at the point of ascertaining that the potatoes were in accordance with specific product description and did this match SGA terms of " identified and agreed upon when the sales contract was made?" This may protect Mr. Mash's interests. Or is that contract unconditional? if it is, Mr.Mash has few options but to pay for the product regardless of its quality. Did the contract include specific mention of consumable quality of these potatoes? If not, Mr. Mash must ante up.



Was Mr. Mash prudent in specific contract details including confirming their state upon arrival or delivery? If not, he must foot the bill. Has Mr. Mash included a delivered on approval or on "sale or return" terms providing security and confirmation of acceptance contingent upon adopting the transaction? If not, he must cover the cost of the product. Under these terms Mr. Mash would protect his interests in a quality product and would secure suitable quality products to permit agreed acceptance of title and risk. Otherwise without such clauses in the written contract Mr. Mash will be required to pay for the sub-standard product.

What warranties or conditions were included in the written contract? What product description is rendered? While many terms are considered implied if they do not specifically describe the grade or quality of potato to be delivered then Mr. Mash has not performed due diligience. Without including conditions to specify the product quality then Mr. Mash may not reject a condition which does not exist. At the same time his seller may have been under the impression that the potatoes were to be used as piggery silage.

Mr. Mash must also be aware that the terms of acceptance of the product determine and rule his obligation to pay for them. If he indicates acceptance of the products prior to inspection he should swallow his losses. If Mr. Mash refuses to pay at that point he will face potentially more than double his losses on the litigation and could be sued for breach of contract which would be a stain on his business records. Did Mr. Mash use EXW, FOB or CIF? If Joseph Emanuel secured payments in advance through some roguery he will laugh all the way to the bank while Mr. Mash cries into his sub-standard spuds for not making enough conditional title transfer and acceptance terms or a foolish contract devoid of ascertaining rights to the delivered quality of his property.

He must pay for his mistakes in that case.

Nortel bites bullet

Smile: It improves your face value!

Report: Alternative Dispute Resolution

Report: Alternative Dispute Resolution

ICC Dispute Resolution Library: Provides regular bulletins, supplements, dossiers, legal law reflections and global dispute resolution rules in a vast compendium of issues and local/global problems.



NAFTA Connect: Assists small businesses to search and find trade partners within the tripatriate treaty framework.

The World Trade Organization: Arbitrates global trade rules between member nations and is the largest of its kind in the world. Resources Gateway provides a host of periodicals, online library and bookshop as well as many free to download articles as well as distance learning modules, multimedia presentations and full trade terminology glossary.

US Canada Relations: The CBC provides an entertaining non-pc look at cartoons pertaining to Canada-US Trade Relations.



Dispute Settlement, DFAIT: A lengthy list of Canadian resolutions proving Canada's willingness to get along.

KCAB: The Korean Arbitration Act was passed in 1999 and the Korea Commercial Arbitration Board was founded in 1966.

Korea Law: Provides details regarding local arbitration procedures.

Not a website but a video clip of the most recent Korean Parliamentary Brawls to highlight local challenges to conflict resolution in handling the current economic crisis here.

Nation Treaty Breaches

Nation Treaty Breaches

First, private litigation between trading partners revolves around self-regulated arbitration and mediation contractual terms which differs greatly in scope and scale from perceived nation treaty breaches. For example, certain government agencies may or may not assist or investigate complaints such as the Canadian International Trade Tribunal, The Canadian Competition Bureau, or the US International Trade Commission.

Canadian International Trade Tribunal

Canadian Competition Bureau

US International Trade Commission

Other international arbitration groups exist such as may also administer arbitration proceedings which for all intensive purposes provide a suitable forum for dispute settlement which is more equitable and economical in terms of contractual resolution rather than costly and time-consuming litigation such as:

ICC

AAA

Centre for Public Resources

European Convention on International Commercial Arbitration

UNCITRAL (Closely coordinated with the WTO)

LCIA

BCICAC
http://www.bcicac.com/

Quebec National and International Commercial Arbitration Centre

Japan Commercial Arbitration Association

CIETAC

World Intellectual Property Organization Arbitration Centre

Outright nations breaching of bilateral treaties may be arbitrated under terms of NAFTA or the WTO among Canada, the USA and Mexico for example. Dependent upon the particulars of the treaties themselves arbitration solutions may be settled in one of more of the arbitration fora listed above.

Increasingly the WTO administrates disputes among member nations for either WTO or GATT treaty infringements or violations. Following failure to meet resolution terms results in binding arbitration panels which may be enforced through more serious means such as punitive actions limited to enforcing trade access agreements and recommendations as to conformance with WTO dispute resolution agreements.

"An examination of GATT/WTO arbitration procedures" (Zekos, 1999)

Prohibitive trade practices may then come to effect on a nation by nation level and plaintiff nations may seek further removal of trade concessions to delinquent nations under terms of the Uruguay Round. Rewards for plaintiffs may not be enforced however as the WTO does not have the political support to do so, yet. Retaliatory measures while submitted for further claims more clearly are determined by the comparative economic powers of the disputing states rather than legal rulings. Since the US appears to remain the largest enforcement of rulings often may appear to revolve around the elephant in the room. Canadians recalling the soft-wood lumber debate might confirm this. States with many outstanding awards and claims become, "the black sheep of the family" and acquire reduced FDI and trade developments as a result.

NAFTA

WTO

GATT

Regarding Al-Sagar v. Jalal Hamoodi

Regarding Al-Sagar v. Jalal Hamoodi: This case exemplifies special conditions which require perhaps special actions and circumstances for extensive cross-border litigation proceedings.

First court litigation in Dubai could be used for a request for extradition from Canada to face his trial based on the possible fraud of Mr. Hamoodi at Al Sagar Enterprises which resulted in his taking 1.7 million dollars cash from the company and absconding from the country illegally which added considerable charges to his case such as failure to appear in court and exiting the country illegally.

His attainment of a passport in Pakistan might also be considered an additional crime as well as entering the country illegally. Furthermore his proceedings having been delayed necessarily due to his abscondment and would implicate his status as a landed immigrant in Canada which would have been acquired under issues of false pretense.

Through his repeated and collective malfeasance Mr. Hamoodi has turned his commercial fraud case into an international criminal case in several nations and as attainment of landed immigrant status is also perhaps guilty of a criminal act in Canada.

Proceeding in Canada would result in a relitigation or re-trial of his case with evidence provided from the plaintiffs in Dubai who may or may not have already attained a legal verdict. Obviously the Dubai based prosecutors are pursuing the likelihood that Mr. Hamoodi has purchased or attained considerable assets or properties either in Canada or Pakistan. However judicial proceedings might be considered more reliable and asset recovery on the part of Al Sagar might be challenging otherwise.

Dubai has neither signed The Brussels Regulation or the Lugano Convention, The Foreign Judgments (Reciprocal Enforcement) Act 1933 nor The Administration of Justice Act 1920.

"Enforcing English Judgments Abroad" (Pinsent Masons with caveats attached)

However Canadian enforcements of Dubai judgements may be made based upon the facts that:

a) Mr. Hamoodi was resident of Dubai during the alleged fraud and when the litigation proceeding commenced as he was served there prior to abscondment.

b) Dubai courts were in full jursidiction and was bound by their decisions.

c) The jurisdiction of Dubai over Mr. Hamoodi is strongly related to his abscondment and illegal landed immigrant status in Canada and in fact helped perpetuate it.

Proceedings in Canada may only require clarification of Dubai judgement as terms of fraud are quite similar in both nations due to a familiar context of Commonwealth status or the historical colonial connections to the UK similar between both nations. Dubai court decision must provide evidence that the verdict was reached without local fraudulent means. Some proceedings of UAE governing legal law might appear inconsistent with Canadian principles of natural justice however.

Most likely a Dubai prosecution team would be sent to Canada to litigate under Canadian laws in Quebec because it is likely that Mr. Hamoodi has dispersed his assets internationally with ample opportunities to do so through extensive EDI and transactionary services globally. This would be to take advantage of Quebec's Marvena injunction which would prevent any expatriation of current assets prior to judgement and an Anton Piller order to search and secure all assets and premises of Mr. Hamoodi in Canada to prevent offshoring of any Al Sagar damages awarded.

The result would most likely proceed either as:

a) Enforcement of Dubai court verdict.
b) Canadian proceedings in the event of difficulties with a).
c) The imprisonment or confinement of Hamoodi.
d) Proceedings on Hamoodi's criminal attainment of Canadian landed immigrant status.
e) Extra-judicial evidence gathering in Pakistan.
f) Global assets search through record Hamoodi's wire transfers or remittance history.
g) Eventual repatriation of Hamoodi to Dubai following either enforcement or re-trial in Canada.
h) Court imposed judgments in Dubai generally, "life in prison followed by deportation."

International Trade Tax Enforcements

International Trade Tax Enforcements

Canada maintains several bilateral tax treaty arrangements with its trading partners globally. Through the conduct of international trade between both nations contract terms include international arbitration and mediation rather than cross-border litigation as the self-regulatory management system to enforce contract terms.

A list of trade taxation partners may be found at: "Citations to the Statutes of Canada and other official documents" Department of Finance Canada.

In the failure to pay appropriate taxes on business transactions bilateral treaty nations would consider it in their best interests to monitor and maintain transparent tax records to ensure that transactions either in Canada or the treaty nation involved have received the appropriate jurisdictional taxation payments.

These incomes would represent the governmental impetus to engage favourable trading status with international trade partners above and beyond the econometrical measures of the benefits of comparative advantage more likely supported by business entities in both trading nations. Such treaties exist under terms such as postal exchange, recognition of passports, reciprocal favourable trade regulations and continued income earning for both the governments involved and the participant trading partners themselves.

Failure to make judicial decisions on taxation fraud would provide unscrupulous trading partners with the freedom to avoid taxation on trade exports or imports and thus reduce a nation's overall taxable income from international business which would undermine perceived benefits.

Strict Liability

Why do you think strict liability exists?

Strict liability exists because contract and tort laws are designed to generally protect the consumer but also to limit liability for negligence to those parties responsible for it be they manufacturers, distributors or retailers. In the case of inherently dangerous products such as inflammables, chemicals, acids and other explosives or cutting tools heightened awareness of danger requires higher standards of limitation of defects, either in manufacturing or design and adequate fail-safe warning systems.

For example, handling a gas powered chain-saw is considered quite dangerous especially if the user is under-trained or under-aware of its dangers. Minimum training and safety requirements for on the job operators need to be enforced to prevent contributory negligence. Chain saw safety courses also exist at the provincial level to educate and train users to a minimum level of safe maintenance and use.

However product design safety features including: chain brakes, chain catchers, working safety throttle switches, working on/off switches, and spark arresters are required features of the product. If any are found defective strict liability would be enforced on any injury claims.

"Red Cross Chainsaw Safety Recommendations"

What is the justification for strict liability?

Dangerous goods need extra special attention to liability avoidance. It is a means to monitor and strictly enforce safety standards and would encourage industrial manufacturers of dangerous goods to exceed a level of diligence and use extreme vigilence in the production and sale or distribution of its products. For example professionals may be trained as certified fireworks display technicians. However if the fireworks they use are faulty strict liability claims would be enforced on any injuries of spectators.

"Pyrotechnics Guild International: Fireworks Training"

"Fireworks explosion at Enschede, Netherlands"

Isn’t the imposition of liability without a showing of fault rather unfair?

The previous fireworks example apparently caused 23 dead, 950 wounded, 500 companies damaged and 1250 people homeless, with a damage cost of ƒ1 billion dutch guilder or 454 million euros/$302 million US dollars. Another good example is the Bohpal Disaster. The fault is evident in the Union Carbide production and safety requirements at the factory. No one else was involved with making chemicals there. Strict liability faults rely heavily on delictual principles.

"The bhopal gas disaster Part 3 - (National Geographic)"

Poppa Smith and the Champagne Bottle

Poppa Smith and the Champagne Bottle

Mrs. Smith bought a bottle of expensive French champagne from the liquor store to celebrate her father’s birthday. Because she wanted a big “pop” for the occasion, she shook the bottle a few times before giving it to her father. When her father opened it the cork released prematurely, injuring his eye. It turned out that the cork was rotten.

Can he sue?

This is quite similar to the integrated glass in the bread case described in our text. One must decide if this a case of product liability claims for contractual breach or negligence liability. He can sue, anyone can sue. The question is, "Can he win?" Being corked in the eye with a champagne bottle may be an expected potential risk and if the product labelling includes a warning not to point it towards anyone's face there may be cause for this claim to be thrown out of court under terms of appropriate labelling or warnings.

Who is liable: the French wine producer, the liquor store, Mrs. Smith, or the wine importer?

While a rotten cork could prove spurious to the biblious, especially since many bottling associations are transitioning to synthetics and natural rubber stoppers or bungs, Mrs. Smith's "poppa" may seek compensation for pain and suffering, out of pocket medical expenses and possible lost wages or lack of enjoyment celebrating his birthday with a champagne induced shiner which might have led to whining and whinging.

The liquor store probably purchased the champagne from a distributor who purchased it from the French bottler. At what point was the cork rotten? At the factory, at the distributor or at the liquor store? Were dates of expiry exceeded or were handling, shipping or storage conditions at fault? Perhaps even a shipping company or product handler may be found liable for damages.

In the case of the liquor store "Poppa Smith" may find evidence to sue based on breach of contract, an implied condition under the Sale of Goods Act that the champagne was fit for human consumption. As the stopper was found to be rotten it was not fit for consumption.

The liquor store might then seek to sue its import distributor if fault may be found in the shipping or handling conditions of the product. Then in turn the producer in France may be painfully drawn into a liability litigation if the product was found to be faulty at source of production by the shipper or distributor. An expensive little chain of fault finding and finger pointing could occur.

If this is the case then "Poppa Smith" may also sue the French manufacturer for the tort of negligence if it is found negligent by any of the other parties.

Are there any potential advantages to suing under contract law (if such a suit is possible) as opposed to negligence?

Suing under contract law might be easier to prove in court as the damages may include extra benefits to the plaintiff. There might also be a rich source of prior cases for examining precedence for his claim including the handling of rotten bungs.

When do you think one proceeds using a negligence theory of liability?

One might proceed under negligence theory when no contract directly linking the consumer to the producer is evident yet all litigation has proven negligence of liability especially if the retailer or distributor have cleared their possible liabilities by directly proving producer defect, design defect, or failure to warn consumers under terms of either res ipsa loquitor ("the terms are clear") or delictual principles (extra-contractual liabilities).

However if those labels were affixed in accordance with bilingual language laws (as in Canada) even if the product was found faulty it would be difficult to prove liability in the case of a champagne bottle gone typically awry. What if "Poppa Smith" or his daughter were trying to fleece the producers by secretly procuring a faulty stopper post-popping and claiming foul? Even the act of shaking the bottle could be found contributory negligence regardless of the rotten stopper. Especially if warning labels include, "Do Not Shake."

For example, new warning labels on plain old wine bottles regarding alcohol and pregnant women were causing debate last year regarding reasonable conditions of res ipsa loquitor in "New Health Warning on Wine Labels Has Many French Seeing Red" (Washington Post, 2007)

Another article from the British Journal of Opthamology in 2004 concluded that champagne warning labels have indeed reduced risk of eye damages and might over-ride or diminish any claims made on the integrity of the cork notwithstanding.

"Serious eye injuries caused by bottles containing carbonated drinks" (Kuhn,Mester,Morris & Dalma, 2004)

If appropriate warnings were made regardless of cork condition "Poppa Smith" may end up with outstanding legal costs and a case thrown out of court along with his shiner.

What limits require producers to balance production cost with consumer safety?

What limits require producers to balance production cost with consumer safety?

Product liability laws are intended to encourage manufacturers and their distributors to ensure that products are safe enough to meet certification standards. Contract laws and tort laws are designed to establish minimum safety requirements with the intention of minimizing exposure to liability. Collateral liability laws also are intended to prevent excessive misrepresentation of products marketing and warranties regardless of whether the manufacturer or retailer is the subject of a liability claim.

Could the John Deere Company have foreseen that Mrs. Nicholson would lose her house to fire as a result of the defective lawn mower?

John Deere might argue that the lawnmower was purchased used at auction without standard instructions or manufacturer's battery cover and that cavet empor or "buyer beware" would more likely apply in terms of negligence or manufacturer liability. If for example, John Deere had advertised that its products were safe and warrantied only from recognized and certified sales agents the decision on the case might have been different. Also as it was a used product, without warnings or notifications of danger of use, newer models might be analyzed to see whether the particular safety issue had been recognized and then repaired, recalled or redesigned since that model year. A progessive safety conscious manufacturer might then be found responsible for not issuing product warnings on future or past models as might be expected. Especially if the safety hazard was known and no consumer warnings were made then the product problem may have been forseen.

What are the practical limits of foreseeability?

These include the defences to negligence which include:

1. Voluntary assumption of risk: For example, I remember signing a waiver and assumption of risk affidavit prior to embarking on a champagne hot air balloon ride in Langley, BC. This would apply if the balloon operator had complied with all regulations in case of injury they would not be considered liable. If however product failure such as balloon seams, gas rupture or burner malfunction occurred and led to injury manufacturer liabilities might still apply. As for the bumpy landing I was on my own.

2. Unforseeable use of product: Recent youtube videos demonstrating the chemical effects of combining mentos a caustic candy, with diet coke a carbonated beverage illustrate a possible unforseen use of products which might limit the liability of either manufacturer in the case of any claims of injury.

3. Product Tampering: The most horrendous example, while excluding the rat poisoning of an entire season of Christmas turkeys in Vancouver in the mid-nineties must be the Johnson & Johnson tylenol tampering murders of 1982. While Johnson & Johnson were never found liable for the product tampering ( they chose out of court settlements) a thorough investigation to the origins of the potassium cyanide were made which exonerated the company from liability and ensured new packaging and tampering laws and requirements. At the same time while enduring horrible losses Johnson & Johnson remains one of America's most admired companies.

4. Contributory Negligence: Several cases made by obese people against MacDonalds for feeding them fatty foods have been thrown out of court as the plaintiffs were found to have committed contributory negilgence in their eating habits rather than any liability on MacDonalds part.

What ought to be the legal limits to the damages awarded in cases where the injury could not have been foreseen?

As our text relates: manufacturing defects, design defects and failure to warn customers of dangers should be the limits to damages awarded in case of injury. For example, I was once tempted to purchase a used Chrysler New Yorker at a Saturday evening show and sale at the rotunda in Abu Dhabi. Following a brief review of its model and year recalls and repairs schedule or history I was chastened.

TERRY FOX RUN FOR CANCER RESEARCH - Friday, February 20, 2009

TERRY FOX RUN FOR CANCER RESEARCH - Friday, February 20, 2009

It’s time to gather your co-workers, family and friends for the 14th Terry Fox Run for Cancer Research to be held on Friday, February 20, 2009.

It is truly moving that the heroic, unselfish mission of one young man serves as such an inspiration to all of us no matter where we live in the world. The Terry Fox Run, named in honour of Canadian amputee runner Terry Fox who at 21, attempted to run across Canada to raise money for cancer research, is no longer just a Canadian tradition. Countries around the world stage annual events in support of Terry's dream of finding a cure for cancer.

When he was 18 Terry’s leg was amputated as a result of bone cancer, but rather than being defeated by the disease he was inspired by it. In 1980, at the age of 19, he began to run across Canada – from the Atlantic to the Pacific – to raise money to fund research to find a cure for cancer. Terry ran 42 kilometres every day for 143 days! Sadly however, at the 5,373 km mark, he succumbed to the cancer. His run became known as the Marathon of Hope. Terry died 10 months after he had to stop his run but his legacy was just beginning: millions of dollars have since been raised in Terry’s name across more than 50 countries. It is estimated that, globally, 3 million people now participate in the annual Terry Fox Runs.

The Run is a non-competitive event where people get together as individuals, families and groups to raise money in Terry’s name. It is a time to celebrate Terry’s legacy and help keep his dream of a cure for cancer alive. Please participate in Terry’s memory and help finish what he started.

Last year, Abu Dhabi participants helped to raise the most funds internationally. Importantly, all funds raised are designated for cancer research projects in the UAE. In light of the current economic situation, it is even more important to show your commitment to the community and to support Terry’s battle against cancer.

Your company’s participation can be beneficial in many ways, such as:
• Improving your company's public image;
• Enhancing the impact of financial contributions;
• Building employee spirit and teamwork skills;
• Attracting better employees because of your corporate image of community concern; and
• Increasing the productivity of your employees.

In 2008 we had three corporate challenges in the hotel, banking, and general business sectors with trophies in each area for number of participants and funds raised. These will continue this year, but if you are not one of these sectors, why not initiate a challenge in your sector? The Terry Fox Run committee can help you!

We hope we can count on you for your participation this year. We urge you to join the 10,000+ runners and walkers as a corporate team or as an individual. As in the past, there is no registration fee to participate, however, we welcome donations.

If you wish to participate as a corporate team:
1. Designate one person from your company/organization to be the point of contact for your corporate team with one of the undersigned so that we can provide pertinent information, registration, pledge sheets, route, etc.
2. A meeting will be arranged a week prior to the event to review corporate logistics for the event.
3. Terry Fox T-Shirts must be purchased from us, but if you wish to have the T-Shirts with your company name, we will provide the name of the printer to you. Please note: The Terry Fox Foundation policy does not permit a company logo – just the name and in keeping with the Terry Fox Foundation request, there are no corporate banners allowed on the Run day.

We sincerely hope that you will participate in the Run this year. If you require more information about how to donate or participate, or require any promotional literature, a DVD or a speaker, please contact one of us.

Thousands of people of all ages, all nationalities and all levels of fitness will be keeping Terry’s Marathon of Hope going in Abu Dhabi. This 8.5 km run begins at the parking lot near Sheraton Abu Dhabi Hotel & Resort and travels in a circuit down the Corniche. Registration opens at 8:00 am on February 20. Run starts at 10:00am.

Please know that every dirham counts and yes, you can make a difference!
For more information, please contact one of the Co-chairs of the Corporate Sub-committee:

Pam Simmons
Email: pam@core-niche.com
Mobile: 050 328 6047

Anne McAdam
Email: Anne.Mcadam@nbad.com

For general inquiries: abudhabiterryfoxrun@gmail.com

ARVO PART - MY HEART IS IN THE HIGHLANDS

Are you familiar with the Hebei Spirit ruling controversy here in Korea?

Are you familiar with the Hebei Spirit ruling controversy here in Korea?

A foreign registered tanker was found legally at anchor in a Korean harbour on the west coast when struck by a rogue barge owned by Korean chaebol Samsung in 2007. Local judical rulings have repeatedly found fault with the tanker management company and under local Korean criminal codes of shared responsibility has imprisoned the Captain and first mate since the incident.

Many Maritime Law agencies are critical of the Korean courts decision.

Would this be a good example of governing laws venue and local clause disparities? Would examination of the delivery contract for the tanker company reveal any attornment to Korean legal judgements?

Legal and Moral Obligations of Transactions to Possible UN Trade Sanctions Nations

Legal and Moral Obligations of Transactions to Possible UN Trade Sanctions Nations

Legal obligations in transactions to possible UN trade sanctions nations: Knowledgeable shipment of goods to a third party nation with the intention of contravening UN trade sanctions would prove hazardous in terms of liability to several sets of laws and regulations concerning international trade including Canadian ones as well as those of The United Nations. Civil suits could arise as well as the possibility of imprisonment in foreign nations. For example, special regulations exist in Canada concerning trade sanctions for Zimbabwe. Other nations, such as Iran and Burma are included on a list maintained by DFAIT which correlate and correspond with UN sanctioned nations which include progressive resolutions which are modified over time due to changing political conditions in member states. For example, sanctions and embargos in South Africa in the 1980s are credited with assisting that nation to promulgate new laws instead of Apartheid.

Failure to comply with sanctions could also result in the cancellation of trade export permits, fines, and local iimprisonment regardless of selection of proper laws or governing laws of contract to nations which have not ratified UN recommendations. In the case of milk powder there may be no legal restrictions as in the Iraqi "Oil for Food" program provisions which exempt food stuffs especially those relating to child welfare may exist. Employment of a lawyer conversant to sanctions provisions might prove that there is nothing illegal about the transaction.

Moral obligations in transactions to possible UN trade sanctions nations: Due diligence is a required facet of any trade conducted in Canada or elsewhere. Knowingly contravening trade sanctions laws with the hope of escaping detection through third party exchanges in a foreign nation would provide evidence of moral hazard or the realisation on the part of the exporter that local laws are contravened knowingly through removal to third or fourth nations where unrelated parties exchange and transfer sanctioned goods to a delinquent nation. A reputable business or export company would not knowingly engage in such nefarious practices.

Discussion on Governing Law Clauses in International Distributorship Agreements

Discussion on Governing Law Clauses in International Distributorship Agreements

Arguing in favour for Saskatchewan in terms of governing law clauses in case of disputes for distribution of Swedish Bofors Super Waterbed by Ace Distribution Inc.

While omission of the governing clause is a significant flaw in the contract one must assume Ace Distribution Inc.'s ability to perform the function of full-stocking distributor according to Chapter Five Agency and Distributor Agreements in Export Sales and Marketing Manual (Jagoe, 2007).

For example, is this distributor able to provide evidence of local contacts, product knowledge, personnel, facilities, and financial resources to perform all duties included in the distribution agreement? By such means can disputes be anticipated?

Disputes may revolve around profit margins on discount purchases from Bofors to re-sell in the Canadian market and their resolution proceedings would normally include clauses such as: effective agreement dates with inclusive future contingencies in terms of dispute resolution, mediation or arbitration and termination of agreement which is generally subject to the local laws in an importing country.

These local laws, in Canada or Saskatchewan, would implicate the effectiveness of official termination dates or even requirements and stipulations of written notice of intention to terminate distributorship agreement which demonstrates further dispute resolution mechanisms beyond the simple scope of governing law. They would need to agree with Canadian laws ruling terms of distributorship.

Termination clauses might include circumstances such as:

1. Failure to meet or exceed agreed sales goals and targets as specified in the agreement.

2. Payments not made to exporter according to contract agreement or failure to meet credit or consignment terms.

3. Dismissal or removal of essential staff seen as crucial to compliance with the terms of the distributorship and thus listed in the agreement.

4. Loss of legal authorization to act as import representative.

In "International Business Transactions" (Folsom, Gordon and Spanogle, 2004) as well as our course text, the Province of Saskatchewan determines its own policies and has several options regarding omission of governing law concerning foreign distributorship agreements as in the US.

Should Bofors seek to litigate arbitration in a Swedish court, local judiciary authority (Eg. Saskatchewan) may have the perogative to reject foreign judgements providing de novo (new) trial in its own courts. Conversely it may seek to enforce a Swedish court's decisions as its own in domestic judgements. Recognition of a Swedish judgement could also occur, but would require local court proceedings to enforce it. Also in terms of reciprocity between Canada and Sweden, special conditions regarding disputes and governing law which may void any mention of it in the contract in any event could exist.

Our text relates considerable attention is given to the exposure level of the entrepreneur as a key factor to governing law. Therefore the Ace Distributor Inc. agreement would have to ensure that it meets minimum standards to maintain distributorship rights in Canada as a primary motivation to review and inclusion of a governing law clause from the outset which protects the Canadian entrepreneur's best interest.

So while inclusion of the governing law clause would be useful depending upon local conditions it may not even be enforceable.

Emerging Markets & The Credit Crunch