LJU4804 Assignment 2 Semester 2 2024 | Due 13 September 2024

Description

LJU4804 Assignment 2 Semester 2 2024 | Due 13 September 2024. All questions were answered with references.

Read the set of facts below and then answer the questions that follow:
Just Jeans (Pty) Ltd is a clothing manufacturing company incorporated in South Africa with its principal place of business in Durban. Just Jeans regularly purchases large consignments of denim material from Materiale S.p.A, a company incorporated in terms of the laws of Italy with its principal place of business in Milan (Italy). In January 2024 Just Jeans purchased another large consignment of material from Materiale. During the ongoing business relationship, the order was always for Blue Indigo cloth and this is the only colour of cloth that Just Jeans uses for their denim brand. When the latest consignment arrived at Just Jeans, the quality controller determined that the colour was not Blue Indigo, but indeed Stone Washed Blue. Just Jeans informed Materiale that the material did not conform to the contract, but Materiale disputed this. The contract contained an arbitration clause, referring disputes arising out of the agreement to settlement by means of institutional arbitration administered by the Arbitration Foundation of Southern Africa. The contract did not contain a choice of law clause.
In terms of the contract, the consignment had to be shipped CIF (Durban) and payment had to be made into Materiale’s business account held at Intesa Sanpaolo, Milan. As mentioned, the consignment was delivered to Just Jeans’s warehouse, but Just Jeans refused to make payment.
1. Why is this a private international law matter? (1)
2. How would the arbitral tribunal determine the law applicable to the substance of the dispute? Refer to the relevant provision of the UNCITRAL Model Law on International Commercial Arbitration, incorporated as Schedule I to the International Arbitration Act 15 of 2017. (3)
3. If the tribunal finds the rules of South African Private International Law applicable, explain how it would determine the proper law of the contract if the objective approach was employed? (6)
Assume for questions 4 – 7 that Italian law was found to be the proper law of the contract. Italy is a CISG contracting state.
4. What is the scope of application of the CISG? (2)
5. Based on the facts above, and the CISG’s scope of application, should the tribunal apply the CISG to the dispute? (3)
6. What does the CISG provide in respect of non-conformity of goods? (5)
TOTAL: [20]