Just Jeans (Pty) Ltd is a clothing manufacturing company incorporated in South
Africa with its principal place of business in Durban. Just Jeans regularly purchases
large consignments of denim material from Materiale S.p.A, a company incorporated
in terms of the laws of Italy with its princip...
, 1. Why is this a private international law matter?
This is a private international law matter because it involves a dispute between
parties from different countries (South Africa and Italy) regarding a cross-border
commercial contract. Private international law governs conflicts arising from
international transactions and contracts, including determining which legal system
and laws should apply to resolve disputes. In this case, the dispute over non-
conforming goods under an international contract falls within the purview of private
international law.
2. How would the arbitral tribunal determine the law applicable to the
substance of the dispute? Refer to the relevant provision of the UNCITRAL
Model Law on International Commercial Arbitration.
The relevant provision is Article 28 of the UNCITRAL Model Law on International
Commercial Arbitration (Schedule I to the International Arbitration Act 15 of 2017).
Article 28 states:
"The arbitral tribunal shall decide the dispute in accordance with the rules of law
chosen by the parties as applicable to the substance of the dispute."
"If the parties have not chosen any law, the arbitral tribunal shall apply the law
determined by the conflict of laws rules which it considers applicable."
Since the contract between Just Jeans and Materiale contains an arbitration clause
but no choice of law clause, the arbitral tribunal would first look at any applicable
conflict of laws rules to determine the law governing the contract. In the absence of a
specific choice by the parties, the tribunal will use conflict of laws principles to decide
the appropriate substantive law.
3. If the tribunal finds the rules of South African Private International Law
applicable, explain how it would determine the proper law of the contract if the
objective approach was employed.
If South African Private International Law applies, the tribunal would use the
objective approach to determine the proper law of the contract. This approach
involves:
Identifying the Most Significant Relationship: The tribunal would assess various
factors such as the place of contract performance, the location of the parties'
businesses, and the place of contract formation.
Considering Contractual Terms an d Practices: The tribunal would evaluate the terms
of the contract and the nature of the contractual relationship. This includes where the
goods are delivered (Durban) and where payments are made (Milan).
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