Reference no: EM132314492 , Length: word count:2500

Task: Short Response Assignment

Key Information:
Ensure you follow the IRAC structure when you are addressing each legal element.

Issue
• What is the legal issue you are considering in this element?

Rules
• What are the relevant legal rules and principles used to determine whether this element or defence is satisfied?
• Ensure you cite the relevant legislation or international instrument.

Application
• In this section we apply the legal rules to the factual scenario we are considering.
• How do the rules apply in this scenario? Why are the legal rules satisfied/not satisfied?

Conclusion
• Based on the legal rules and their application to this scenario, what is the outcome of this scenario?

Short Response Questions

PART 1

Huawei is a Chinese telecommunications company that is the second-largest manufacturer of smartphones in the world. In 2019, the US Government signed an executive order that effectively blacklisted Huawei, restricting Huawei from doing any form of business with any other company in the United States.President Trumphas justified the ban by reasoning that the use of Huawei hardware to build cellular network infrastructure in the United States poses a security threat. He believes that the Chinese government may make use of the Chinese hardwaresuch as the Huawei network parts to violate intellectual property restrictions, steal trade secrets, listen in on US military conversations, or otherwise spy on the United States.

As a result of the blacklist, Huawei is no longer able to contract with Google who is the creator of Android, the most-used smartphone software operating system in the world. Current owners of Huawei phones will soon lose updated access to popular applications such as Gmail (a well-known email service), YouTube (a highly popular video sharing app), and the Google Play Store which allows smartphones to download other useful applications developed for the android software.Over 200 million Huawei phones have been sold to consumersand these consumers may now lose much of the accessibility of their phones as a result of the restrictions placed on business between Huawei and other American companies such as Google.

PART 1: ASSIGNMENT QUESTIONS

Based on your knowledge of ethics, drawing from the lecture, required reading and the Framework for Thinking Ethically document, answer the following questions:

1. Identify, and describe the ethical approach or approaches that believe President Trump is using in making his decision to blacklist Huawei business in America.

2. What ethical position or theory would Huawei use to challenge President Trump's decision?

In answering this question, please note that it is not enough to list ethical approaches that may apply. You need to demonstrate, based on the scenario facts given above, how those ethical approaches may impact stakeholders and the reasoning behind your selected ethical approach.

PART 2

‘Kettle Black' is an Australian company that sells tea commercially in retail stores around the country. Recently, Chinese Jasmine Tea-based desserts have become very popular in Australia which has led to restaurants approaching Kettle Black to source high-quality tea for them. With the increased demand for Chinese Jasmine Tea, Kettle Black decide to approach PuriTea, a Chinese tea company that sells tea in bulk through their online store.

Kettle Black negotiate with PuriTea via email over the price of the tea bags. PuriTea offer to sell Kettle Black the Chinese Jasmine Tea at $0.10c AUD (instead of the usual $0.20cAUD)until 11:59pm May 31. They present this offer as an electronic contract. After the time period passes, the discount price expires and the offer lapses. The contract has already been correctly signed by PuriTea.

One of the terms of the contract states:

Clause 50 The terms and conditions and the transaction contemplated shall hereby be governed by and interpreted in accordance withthe laws of Beijing, China.

Kettle Black signs the contract and returns it via email. They click ‘Send' at 11:58pm May 31. The email containing the completed contract is received by PuriTea at 12:05am June 1.Kettle Black does not receive a reply back from PuriTea.

PART 2: ASSIGNMENT QUESTIONS

3. Is this contract governed by the United Nations Convention on the Use of Electronic Communications in International Contracts?Why or why not?

For Questions 4 and 5, assume the contract is governed by the UN Convention on the Use of Electronic Communications in International Contractsand the UN Convention on Contracts for the International Sale of Goods.

4. Is there a valid contract between Kettle Black and PuriTea?

5. Would the scenario change if PuriTea immediately responded to Kettle Black's email and rejected the signed contract on the basis that it was received past the deadline?

Following the miscommunication over the discount for the Chinese Jasmine Tea, Kettle Black and PuriTea decide to re-negotiate a new contract. Lei, a new employee at PuriTea, takes over Kettle Black's account at the company. Lei is a new graduate and has never worked in international business before. On June 15, Lei's supervisor asks her to sign the contract electronically and send it to Kettle Black to sign and return to them. The contract Kettle Black receives from PuriTeais able to be freely edited without tracking any changes made to the terms of the contract. Lei has also forgotten to update the time limit on PuriTea's signature's authentication certificatewhich says that the signature is ‘valid until 11:59pm 31 May 2019'.

6. Is the signature used by Lei (on behalf of PuriTea) valid in accordance with the UNCITRAL Model Law on Electronic Signatures? Assume this model law governs this agreement.

Kate, the owner of Kettle Black, is a passionate tea drinker and wants to try some ofPuriTea'smore exotic tea for herself. When she goes to make an order, she is surprised to find that PuriTea uses an automated messaging system (AMS) built into their website in order to answer client questions and process orders. She goes to order 1 Box of Sunflower GreenTea through the AMS but does not notice that her ‘1' key has gotten stuck. As a result, she inadvertently types ‘111' in the quantity field. There is no order confirmation screen which results in Kate accidentally ordering 111 Boxes of Sunflower Jasmine Tea.

7. Does the UN Convention on the Use of Electronic Communications in International Contractsalso apply to the personal order made by Kate? Why or why not?

Kate contacts PuriTea the following day when she notices the error in her confirmation email and asks to change the quantity to 1 instead of 111. PuriTea refuses to do so.

8. Assume the UN Convention on the Use of Electronic Communications in International Contractsapplies to the scenario. Is Kate able to amend her typographical error?

PART 3

Wicks is a candle company based in the United Kingdom. They have a longstanding commercial relationship with Styled, a Canadian company that furnishes and styles homes that are for sale.Styled commonly uses lit candles to create a sweet, homely scent throughout the house in the hopes that it will entice prospective buyers to commit to the sale. Styled recently asked Wicks to create a candle that smelled like Christmas cookiesfor placement in their styled houses over the Christmas period. Styled ordered several hundred of these candles totalling a cost of $20,000 USD.

When Styled received the candles, they were shocked to find that the ‘Christmas Cookies' candle smelled like ashy, burned cookies. Styled blames Wicks for its loss of commission over the Christmas period due to this mistake as the scent of the candles deterred people from wanting to stay to inspect the houses. Wicks insists that the smell created for the ‘Christmas Cookies' is an accurate representation of the actual smell of Christmas cookies. Styled has refused to pay Wicks for the delivery of the candles, as was agreed by the parties.

On November1 2019, in an attempt to mend the relationship, Wicks and Styled agree to submit to arbitration ‘to resolve the matter of the contractual performance of the ‘Christmas Cookies' scented candles.' Wicks and Styled agree to the following terms for arbitration:

• The dispute will be administered by the New York Arbitration Association.
• The arbitral tribunal shall consist of five arbitrators. The arbitrators shall be selected and approved by the New York Arbitration Association.
• The dispute, controversy or claim shall be decided in accordance with the law of New York, New York, USA.

The arbitration is scheduled for 45 days after the initial complaint, on December 15 2019 in New York. Due to the heavy Christmas traffic, one of the arbitrators is unable to attend the tribunal on the day and the tribunal decides on the matter with four arbitrators. The arbitrators smell some Christmas cookies and the scented candle and agree that the candle is not the correct scent. The tribunal is so appalled by the horrific smell of the candles that the tribunal not only requires Wicks to provide replacement candles, free of charge, to Styled but also to pay a total of $50,000 USD to Styled as punishment for their mistake.

While at the arbitration, Wicks decides to bring up a separate recurring issue between the parties. Wicks labels their candle with the scent name, a list of ingredients, allergy warnings, and the ‘Wicks' brand name and website. Wicks has seen multiple pictures on the promotional listings for the houses that Styled furnishes that suggests that Styled is removing the label from the candles before displaying them in the homes. It is a term of the contract between Wicks and Styled that these labels are not removed. The arbitral tribunal agrees that Styled has breached its contract and awards Wicks $10,000 USD in damages.

Wicks is unhappy with their required payment of $50,000 USD to Styled and appeal the tribunal's decision at the Commercial Division of the New York Supreme Court.

PART 3: ASSIGNMENT QUESTIONS

9. Styled is applying to a New York Convention signatory court to enforce the arbitration award against Wicks. Consider the application of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and detail the articles and arguments Wicks may use to challenge the enforcement of the arbitration decision.

10. How would the arbitration proceedings have differed if the parties had utilised the ICC International Court of Arbitration?

In the process of appealing the decision to the New York Supreme Court, Wicks learns that Styled were never formally incorporated in Canada. All of the contracts between the Wicks and Styled have been signed on behalf of the company, never as individuals.

11. Are there any contractual consequences that may occur as a result of Styled not being legally incorporated? What are the legal benefits of incorporation?

12. What would be the appropriate international judicial body to deal with the incorporation dispute? Briefly explain your choice of institution.

In the United Kingdom, Canada andthe United States,the removal of information labels from products is considered a breach of intellectual property.

13. Should Wicks and Styled use arbitration or litigation to resolve an alleged breach of intellectual property? Briefly explain your answer.