INTR9033A International Commercial Law:
Take Home Exam – Non Semester 2, 2023
Page. No. 1
INTR9033A
INTERNATIONAL COMMERCIAL LAW｜国际商法
Non-Semester 2, 2023 (Cohort One)
Due Date: 4.00pm Monday, 10 August 2023
截止日期：2022年 8月 10日 16:00 (Beijing Time)
• The Assignment must be submitted individually.
➢ 本作业需每位同学单独提交。
• Submission is via the assignment submission link on the Topic FLO page under the
assessment module.
➢ 作业需通过本课程FLO网页上面作业模块的作业提交链接提交。
• If a student fails to submit the assignment by the due date, they will receive a 5%
reduction in marks per day or part thereof, unless an arrangement has been made with
the Topic Coordinator prior to the due date, no extensions will be given without
compelling reason. Late submission is not permitted more than two weeks after the
original due date, or the due date nominated by the topic coordinator in response to an
extension request.
➢ 若截止日期之前未能提交作业，也未在截止日期之前与课程协调教师另行安排时间，将每
推迟提交一份扣除总分5%或部分内容5%的分数。除非理由非常充分，否则不予延期。作
业的提交不得迟于原截止日期或者课程协调教师指定的截止日期后的两周。
• Failure to submit an assignment is deemed to constitute failure to meet the assessment
requirements for the purposes of eligibility for supplementary assessment on academic
grounds.
➢ 未交作业被视为未达到考试要求，无权参加补充考试。
• Extensions for assignments may be granted in exceptional circumstances only and will
only be granted on medical or compassionate grounds. A student must approach the
Topic Coordinator prior to the submission deadline to seek such an extension.
Documentary evidence supporting the requested extension (e.g. a medical certificate
covering a sufficient relevant period prior to the due date) will be required.
➢ 只有极特殊情况才批准作业延期，包括就医或者情感原因。同学们必须在截止日期前向课
程协调教师申请延期。
➢ 申请延期需提交相关材料（如截止日期前一段时间内的就医证明）。
• Plagiarism and other forms of academic dishonesty are treated as serious
offences by the University and are subject to harsh penalties, which may include
expulsion from the University. Please ensure that you have read and understood
INTR9033A International Commercial Law:
Take Home Exam – Non Semester 2, 2023
Page. No. 2
the University’s policy on academic dishonesty, as contained in the Student
related Policies and Procedures Manual.
➢ 抄袭和其他学术不端行为被弗林德斯大学视为严重违纪行为，会给予严厉处罚，包括开除
学籍。务必阅读并理解弗林德斯大学有关学术不端的政策，详见《学生手册》。
可以打开以下链接了解详细信息｜For further information please refer to;
https://students.flinders.edu.au/my-course/academic-integrity
INTR9033A International Commercial Law:
Take Home Exam – Non Semester 2, 2023
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PLEASE ANSWER THE FOLLOWING TWO-PART QUESTIONS
PART 1 – PROBLEM QUESTION (30%)
Following the recent negotiation between Beijing Landun Co., Ltd (Buyer) and the Seller
Treasury Wine Estates on Penfolds wines purchase, a purchase contract was entered into on
1 July 2023 by both parties with the following clauses:
Article 2: Contract Price: AUD1,560,000,
Article 3: The payment is Letter of Credit 60 days.
Article 4: Shipping: FOB Adelaide (INCOTERMS 2020)
…..
Article 29: Force Majeure: If and to the extent that a Party’s performance of any of its
obligations pursuant to this Agreement is prevented, hindered or delayed directly or
indirectly by fire, flood, earthquake, elements of nature or acts of God, acts of war,
terrorism, riots, civil disorders, rebellions or revolutions, or any other similar cause beyond
the reasonable control of such Party (each a “Force Majeure Event”), and such non-
performance, hindrance or delay could not have been prevented by reasonable
precautions, then the non-performing, hindered or delayed Party shall be excused for such
non-performance, hindrance or delay, as applicable, of those obligations affected by the
Force Majeure Event for as long as the Force Majeure Event continues and, except as
otherwise provided in this Section, such Party continues to use its commercially reasonable
efforts to recommence performance whenever and to whatever extent possible without
delay, including through the use of alternate sources, workaround plans or other means.
The Party whose performance is prevented, hindered or delayed by a Force Majeure Event
shall promptly notify the other Party of the occurrence of the Force Majeure Event and
describe in reasonable detail the nature of the Force Majeure Event.1
Article 30: Any dispute arising out of or in connection with this contract, including any
question regarding its existence, validity or termination, shall be referred to and finally
resolved by arbitration administered by the Singapore International Arbitration Centre
(“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration
Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be
incorporated by reference in this clause.
Article 31: The Chinese law will govern this contract.
Soon after the contract was entered into, the Buyer applied for a letter of credit to Bank of
Communications in Beijing. Then, the Seller received the payment from ANZ, the affirming
bank in Adelaide of the Bank of Communications. ANZ and the Bank of Communications have
1 https://www.contractscounsel.com/g/37/us/force-majeure-clause.
INTR9033A International Commercial Law:
Take Home Exam – Non Semester 2, 2023
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been working on similar transactions thousands of times and this is just one of many
transactions, and both banks followed their normal business rules, and no disputes
concerning these two banks. The Seller sent the wine to a ship at Adelaide Port on 3 July 2023
and at that time no evidence shows that the wine quality was in dispute. Unfortunately, on
the way to Tianjin port of China, partly due to the extreme hot weather this year and partly
due to improper management of the carrier, the wine’s quality has been greatly reduced and
the Buyer has the potential loss of AUD1,200,000.
Between the carrier and the Buyer, there is a similar Force Majeure clause.
As a participant of this Penfolds wine purchase/sale, please advise on the following issues:
1. The difference between bill of exchanges and letter of credit, and why the letter of
credit was selected? Does the letter of credit protect the Buyer’s interest? (10%)
2. The Buyer did not buy insurance due to its lack of experience. The Buyer would like to
ask both the Seller and the Carrier to compensate its loss. Please advise the Buyer
on whether it can seek any kind of remedies (10%).
3. Why did parties choose to arbitrate rather than litigation? Why was Singapore selected
(rather than other arbitration centre such as Hong Kong) as an arbitration location?
What is the difference between arbitration clause (in particular ‘SIAC Rules’) and the
choice of law (Chinese Law)? Please note that this arbitration clause is the model
clause of SIAC (10%)
The word limit for Prat 1 is 1,500.
PART 2 – ESSAY QUESTION (20%)
In 2021 the Biden administration of the USA announced that it would seek a “TRIPS waiver”
of intellectual property protections related to COVID vaccines at the World Trade
Organisation (WTO).2 Australia did not follow USA’s policy. In 2022, the TRIPS Waiver deal
was finally made.3
WTO Director-General Ngozi Okonjo-Iweala said during the closing press conference that ‘It’s
really exciting now to go to those factories that are starting to set up all over the developing
world and start to work with them about how this will actually be made real.’
Please use the knowledge you have learned under INTR9033A to comment on the above
statement, including explain what TRIPS is, what TRIPS waiver means, and why the USA is
seeking a ‘TRIPS wavier’ while Australia was not. What was China’s position on this issue?
Which ‘developing countries’ Director-General was referring to? What is the current impact
of this waiver.
2 https://publichealth.jhu.edu/2021/wto-trips-waiver-for-covid-19-vaccines.
3 https://www.devex.com/news/wto-finally-agrees-on-a-trips-deal-but-not-everyone-is-happy-103476.
INTR9033A International Commercial Law:
Take Home Exam – Non Semester 2, 2023
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Please do not go over 1000 words. You do not have to answer all of the above questions, but
should write a focused essay. Please use headings and subheadings to organise your essay,
and please make reference. Footnotes are not included in the word count.