Asante Technologies ,Inc. v.

PMC-Sierra ,Inc

164 F.Supp.2d 1142(2001)

United States District Court

Presented byPresented by

陈晓 何晓婷 林玉姗 梁庆 李冠华陈晓 何晓婷 林玉姗 梁庆 李冠华

The first part : Facts Plaintiff : Defendant :

Asante (U.S) PMC (Canada)

Defendant’s Oregon branch

(U.S)

Defendant’s authorized distributor:

Unique Technologies (California U.S)

Asante’s order Unique Technologies PMC

through to

PMC’s confirmation

“shall be govern by the law of the buyer’s address”

“shall be construed according to the laws of Canada ”

Unique Technologies

Asante

Payment

Invoices

resale

PMCAsanteFile suit in California state court

Federal court

Is

transferred to

Remand back to state court

The second part : Legal issue

1.Which law should be applied to in this case ?

2.Whether the federal court has jurisdiction over this case ?

The third part : Reasoning

Applicable rules:

If a party has more than one place of business, the place of business is that which has the closest relationship to the contract and its performance.

ReasoningPlaintiff Judge

Unique acted in the United States as an agent of defendant.

1 A distributor of goods for resale is normally not treated as an agent of the manufacturer.2 Plaintiff has no evidence.

Reasoning1 Defendant’s breaches of representation.

2 Plaintiff’s fax to defendant.

3 Plaintiff directly corresponded with defendant .

4 Plaintiff has no representation emanating by defendant’s Oregon branch.

British Columbia, Canada

1 Unique is not the agent of PMC

2 Plaintiff corresponded

with defendant in Canada

3 Plaintiff has no correspondence emanating from

defendant’s Oregon branch

4 Sales and marketing office;

Principal warehouse; Design and engineering

functions

Reasoning

There are three conditions if The CISG is applicable:

(1)The commercial sale of goods

(2) Between two parties whose places of business are in different countries

(3) The places of business are located in countries that have ratified the convention.

The applicable rules to this case is the CISG.

Reasoning

Reasoning 2:

The parties may exclude the application of this Convention……

If two parties want to opt out of application of CISG, then they have to evince a clear intent.

In this case

1 plaintiff ----purchase order

the laws of California

defendant --- confirmation

the laws of Canada

3 The “Terms and Condition” of both parties are inadequate to effectuate an opt out of the CISG.

That means: The choice of law here do not evince a clear intent to opt out of the CISG .

CISGCanada lawUS law

2 America and Canada have signed and ratified CISG part of the two countries’ domestic law

Reasoning 2

Legal issue

Whether the federal court has jurisdiction over this case ?

Federal Preemption

It is implied in the supremacy clause of Article VI of the Constitution .It applies to matters which are considered to have such a national character that federal laws must supercede （优先于） state laws with regard to them.

the CISG preempts the contract laws of U.S .states?

The expressly stated goal of developing uniform international contract law to promote international trade.

Advantages of the CISG in international transaction.

Exclusive federal jurisdiction=Preemption?

decision

Both of the federal court and the state court had concurrent jurisdiction over the case

Legal for federal court to hear the case

comment1. apply or not

ApplyApply if it meets ：

（ 1 ） commercial sale of goods

（ 2 ） between parties whose places of

business are in different countries

（ 3 ） the said countries have ratified the

CISG

UnlessUnless ：：Clear agreement

on choice of law clauses

From both parties

e.g. para7 ： selection of particular choice

of law…exclusion of the CISG

comment1. apply or not

Comment2.influence of the decision

the decision can be cited as in case law country

Establish a system

e.g. Marbury v. Madison ， 1803

system of scrutiny of constitutional violation

Comment2.influence of the decision

Show appreciation

on the purpose of the CISG

（ to prompt international trades ）

Make the CISG

wider known and applied

In this caseIn this case