• Identify what way of doing international business is involved in the case from pickingoneof the below ways:
  • Direct Contract(import/export of goods)
  • Foreign Agent Representation(hiring of a person or representative in the foreign host country)
  • Direct Foreign Investment(opening a branch office in the foreign host country by way of opening up a branch office or opening up a subsidiary)
  • Franchising(issuing a franchise to another to operate in the foreign host country)
  • Licensing(issuing a license to another to operate in a foreign host country)
  • None of the above(the other students case does not involve any of the forgoing ways of doing international business)
• Explain how this litigation and legal risk involved in the case could have been avoided, mitigated or reduced.

It's Intoxicating, Inc. v. Maritim Hotelgesellschaft mbH 2013 U.S. Dist. LEXIS 107149 (2013) (U.S. District Court, Middle District of Pennsylvania) BACKGROUND AND FACTS The CISG is a "self-executing treaty with the pre- Plaintiff It's Intoxicating Inc. is a Pennsylvania corpo- emptive force of federal law," which "applies to con- ration that manufactures and distributes cosmetic tracts for the sale of goods between parties whose products to various retailers. Defendant Maritim places of business are in different States . . . when Hotelgesellschaft is a German company which owns the States are contracting States." American Mint LLC hotels throughout Germany. Zimmer is an individ v. GOSoftware, Inc., 05-CV-650, 2005 U.S. Dist. LEXIS ual living in Berlin, Germany, and is an employee of 45003 (M.D.Pa. 2005). The parties to a contract may Maritim who was delegated the authority to purchase agree to apply a signatory's domestic law, but only by beauty products on behalf of Maritim. affirmatively opting-out of the CISG. Therefore, a choice In October 2007, Zimmer informed It's Intoxicating of law provision, to be effective, must not only select that Maritim wished to buy its products for use in 38 of the law that will apply but affirmatively state that the its hotels. It's Intoxicating sent via e-mail a document CISG will not apply to the contract. titled "Conditions of Sale," a proposed agreement pur- Here, defendants' place of business is Germany porting to govern various collateral aspects of the par- and plaintiff's is the United States, both countries that ties' developing relationship. That document stated: are signatories of the CISG. Furthermore, because of the parties extensive communications prior to Defen- This agreement will be governed by and construed dant's first product order and because the alleged con- in accordance with the laws of the state of Pennsyl vania, United States of America. The parties hereto tract contained a shipping agreement, it appears that hereby consent to the exclusive jurisdiction and the parties were aware that they were dealing with for- venue of the United States District Court for Luzerne eignentities either before or at the time a contract was County for any action that may be brought in con- formed. Therefore, on its face, it appears that the CISG nection with this agreement and/or from the use of governs this contract dispute. Nevertheless, the parties the Aromapro software and/or from the use of the point out that the agreement contained a choice of law Aromapothecary products. clause which states in part, "[this agreement will be governed by and construed in accordance with the laws Maritim subsequently sent purchase orders to It's of the state of Pennsylvania." Intoxicating in January 2008. It's Intoxicating shipped A choice of law provision is not effective unless it 441 cartons of beauty products to Maritim's hotel in expressly rejects the application of the CISG. Here, the Dusseldorf, Germany, which were accepted by Maritim. parties did not affirmatively state that the CISG does The purchase price was $181,547.80 of which Maritim not apply to this contract, so international law applies. paid $73,724.85. However, in May 2008, Maritim began To plead a contract under the CISG, a party must to run into problems selling It's Intoxicating's beauty allege an offer and an acceptance of the essential terms products. By April 2009, It's Intoxicating still had not of a sale, including the goods, quantity, and price. An received the balance due and filed suit against Maritim. offer must be sufficiently definite and indicate the inten- Maritim filed a motion to dismiss contending that the tion of the offeror to be bound in case of acceptance. parties had never created a binding contract. Acceptance can be made by any statement or conduct MANNION, DISTRICT COURT JUDGE indicating assent to an offer. The CISG provides that the offeree may indicate assent by performing an act, such As a preliminary matter, because Maritim is a foreign corporation and Zimmer is a resident of a foreign coun- as one relating to the dispatch of the goods or payment of the price, without notice to the offeror, and the accep try, the court must consider whether the United Nations tance is effective at the moment the act is performed. Convention on Contracts for the International Sale of As such, while silence or inactivity cannot constitute an Goods applies to the contract in this case, thereby pre- acceptance under Article 18, an affirmative action that empting Pennsylvania law. "indicat[es] assent to an offer" will suffice. Finally, theCISG contains no statute of frauds requirement. so "a contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form." Defendant Maritim seeks dismissal of Plaintiff's breech of contract claim on statute of frauds grounds. arguing. \"an oral contract for the sale of goods in excess of $500 cannot be enforced unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought.' This argument is easily repudiated as the court has determined that the CISG applies to the contract dispute in this case. Because the CISG contains no statute of frauds require- ment. Defends nt's argument fails. Maritim next argues that Plaintiff has failed to adequately plead the essential elements of a contract action. It is true that a party must plead the essential terms of a contract. but Maritim fails to cite any case law indicating that Plaintiff has omitted an essential term from its pleadings. The CISG speaks very briefly to the issue. indicating that the necessary terms {for pleading purposesi are the goods. their quantity. and the price. Here, Plaintiff does not quote the language of the contract but claims that Zimmar made an order on behalf of Msritirn, in response to which Plaintiff shipped 441 cartons of beauty products on eight skids. Plaintiff also sent an invoice for $181,547.30 and. when the products and invoice arrived. Defendant \"accepted\" them.Thase facts are sufficient to raise a plausible infer- ence that the parties had a contract for 441 cartons of beauty products priced at $181,547.30. While there may be a question as to some of the terms of the agreement or the date on which the offer and acceptance were effectuated. these are issues of fact for trial. The allegations as a whole allow the court to make the plausible inference that the parties entered into a binding contract under the ClSG.Therefore, Maritim's motion to dismiss Plaintiff's breach of contract claim will be denied. Decision. The 0156 was applicable to this transaction. and the absence of a definitive writing stating the con- tract terms was insufficient to merit dismissal of the plaintiff's claims