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On May 12, 2020, Mr. Zhang Shaohui initiated on behalf of a client of his law firm in Hong Kong , namely the company Target
On May 12, 2020, Mr. Zhang Shaohui initiated on behalf of a client of his law firm in Hong Kong , namely the company Target Ltd , a retailer of luxury fashion clothes, proceedings before the High Court in Hong Kong against Dries van Noten, a Belgian manufacturer of fashion clothes. The facts were as follows: The manufacturer, the defendant, regularly sold for the past few years clothes to Target Ltd, and was aware that the retailer resold part of the goods to Uzbekistan and Kazakhstan. In June 2019 Target Ltd entered a sales contract with a new client, a retail chain in Sydney, Australia. This transaction had been facilitated by the wedding of the daughter of the CEO of Target Ltd with a manager of the Australian retail chain. Dries van Noten was, however, not aware of the new commercial connection of his client with the Australian chain when, in October 2019, he entered a new contract of sale of fashionable rain coats with Target Ltd. The goods were shipped in Antwerp "CIF Hong Kong (Incoterms 2020)". As usual their contract contained an "opt in" clause, i.e. a choice of law clause in favor of the CISG . In 2020 Burberry Ltd claims that the rain coats sold by Target Ltd on the Australian market bear close imitations of the famous Burberry rain coats, which are protected by a trade mark in Australia, although they are not protected by a trademark in Hong Kong, in Uzbekistan or in Kazakhstan. Burberry threatens to sue the Australian chain and Target Ltd. The latter sues preventively his seller van Noten. Questions: a) Is it true that, concerning the passing of risk between claimant and defendant, the contract derogates from Article 67 CISG? In the affirmative, would such a derogation be valid, assuming that the CISG applies to the contract? b) Could the claimant obtain damages on basis of the CISG from the defendant for the breach of contract constituted by the delivery of rain coats which were not free from rights of Burberry Ltd? c) Could the claimant obtain an order by the High Court of Hong Kong (a Common Law jurisdiction) requiring the defendant Dries van Noten to appear in the High Court in order to defend him (the claimant) against the claims of Burberry Ltd?
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