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1、,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,Legal Fact,Procedural disputes,plai
2、ntiff,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 Cour
3、t 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 a
4、ttempt 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 ha
5、d 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 Ame
6、rican company Chilewich purchased boots from Italian company Flanto.,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.(3
7、) 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 acc
8、eptance 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.,Reasoning 2whether the dispute should be arbitrated in Moscow ? Plaintiffs claim： the Court should take judicial notice of the unsettled conditi
9、ons 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 sho
10、uld believe that the chamber of commerce in Moscow can provide fair and impartial justice to these litigants,From the legal effect of Filantos factual conduct: The actions acted by Filanto should be constituted an acceptance Filanto accepted the memorandum agreement Filanto is bound to the memorandu
11、m agreement (contains arbitration provision) Filanto is bound to the arbitration provision Filanto agrees to arbitrate their disputes in Moscow,From the relevance of the arbitration: The ultimate purchaser is a Russian concern & The Russian Contract is incorporated by reference into memorandum agree
12、ment between Chilewich and Filanto the arbitration forum have a reasonable relation to the Russian contract between Chilewich and Raznoesport The arbitration is relevant to 3 parties: Chilewich, Filanto, Raznoesport,From the unsettled conditions as plaintiffs defense: Russia continue to improve & We
13、 should believe that the chamber of commerce in Moscow can provide fair and impartial justice to these litigants It can not be a effective defense of arbitration forum,From : the legal effect of Filantos factual conduct the relevance of the arbitration the unsettled conditions as plaintiffs defense
14、The dispute should be arbitration in Moscow,The partites were referred to arbitration in Moscow.,Filantos failure to object to the arbitration term in Chilewichs offer in a timely fashion, and its willingness to accept Chilewichs performance, amounted to an acceptance.,Decision,Whether the case shall be heard in the U.S. District Court or arbitrated in Moscow ?,Whether the attempt to exclude the arbitration clause by Filanto is effective ?,Whether the actions acted by Filanto in May constitute an acceptance ?,Thanks for listening,
