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单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,2015/11/21,#,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,2015/11/21,#,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,2015/11/21,#,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,2015/11/21,#,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,2015/11/21,#,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,2015/11/21,#,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,2015/11/21,#,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,2015/11/21,#,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,2015/11/21,#,Filanto v.Chilewich,Group 5,曾晓菲、陆泽娴、陈静渝,姚文琦、朱旦妮、何智锐,Facts,Filanto,Seller,Chilewich,Buyer,Seller,Raznoexport,Buyer,Plaintiff,Defendant,Negotiated&offered to purchase the boots,Contract for the sale of shoes containing arbitration agreement in Moscow,Timeline,Filanto,Chilewich,In,March 1990,Did,not sign,but,kept,this memo,Sent a signed,”Memorandum Agreement”,(containing price,payment,delivery terms and requirement of the letter of credit,incorporating the,arbitration agreement,)to,Filanto,for its signature,In May,1990,A,ccepted,the letter of credit,Shipped,some boots,Furnishe,d,the letter of credit to,Filant,Paid,some boots,In August,1990,Signed and returned the memo,but with a,cover letter to exclude,the arbitration clause,Rejected,Disputes,Enforce the balance of the,contract,Sued in American district,court,Did not accept,the balance of the boots,Case must be arbitrated in Moscow,Legal Fact,Procedural disputes,plaintiff,defendant,The balance of the contract,should,be enforced,Never accepted,the balance of the boots it had ordered.,Should the balance of boots be paid,?,Brought this case to,United States District Court,The case must be,arbitrated in Moscow,Whether the case shall be,heard in the U.S District Court,or to be,arbitrated in Moscow,?,plaintiff,defendant,Substantial disputes,Legal Issue,General legal issue,“Whether the case shall be heard in the U.S.District Court or arbitrated in Moscow?”,Specific legal issue,“Whether the actions acted by,Filanto,in May constitute an,acceptance,?”,“Whether the attempt to,exclude the arbitration clause,by,Filanto,is effective?”,Filanto,(Plaintiff),Chilewich,(Defendant),V.S,Partial payment,Partial delivery,May,Signed and returned the memo,Excluded the arbitration clause,Never accepted the balance of the boots,August,Defendant contended that the plaintiff had already made their acceptance in,May,Plaintiff alleged that they didnt make their acceptance until,August,“Whether the actions acted by,Filanto,in May constitute an acceptance?”,“Whether the attempt to exclude the arbitration clause by,Filanto,is effective?”,Reasoning,Applicable,law,：,CISG,American company Chilewich purchased boots,from Italian company Flanto.,Art 1 This Convention applies to contracts of,sale of goods,between parties whose places of business are,in different States,:,when the States are,Contracting State,The Memorandum agreement was an offer,though Filanto did not sign and return the,memo,in March,in light of the parties course of dealing and Filanto shipped some boots in May,Filantos silence can be an acceptance.,Article 18.(1),A statement made by or,other conduct of the offeree indicating assent to an offer is an acceptance.,Silence,or inactivity does not in itself amount to acceptance.,Article 8.(3),In determining the intent of a party or the understanding a reasonable person would have had,due consideration is to be given to all relevant circumstances of the case including the negotiations,any practices which the parties have established between themselves,usages and any subsequent conduct of the parties.,Article 18.(3),However,if,by virtue of the offer or as a result of practices which the parties have established between themselves or of usage,the offeree may indicate assent by performing an act,such as one relating to the dispatch of the goods or payment of the price,without notice to the offeror,the acceptance is effective at the moment the act is performed,provided that the act is performed,within the period of time,laid down in the preceding paragraph.,Flantos idea,Flanto accepted,the,Memorandum,Agreement,excluded the arbitration clause.,Chilewich,s idea,Filantos,action in August was a proposal for modification of the,Memorandum,Agreement.And Chilewich rejected this proposal.,Judges idea,Flanto was,under a duty to alert Chilewich in timely fashion to its objections to the terms of the,Memorandum,Agreement.There was an agreement to arbitrate between these parties.,Reasoning 2whether the dispute should be arbitrated in Moscow?,Plaintiffs claim,：,the Court should take judicial notice of the unsettled conditions in Moscow,Contends that the disputes should be arbitrated in US,The,Court,：,the dispute should be arbitrated in Moscow,Both the plaintiff and,defendant did agree,to arbitrate their disputes in Moscow,The arbitration forum in this case does have a reasonable relation to the contract at,issue,We should believe that the chamber of commerce in Moscow can provide fair and impartial justice to these lit
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