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Civ 6 Play Europe Again

Nikkei then cabled Productos Fontanet informing them of the cable from Nigeria and requesting that shipments be deferred for three months. Nikkei received a telegram on September 3, 1975 from Productos Fontanet indicating that a penalty would be assessed against Nikkei if shipments were delayed.

Civ 6 Play Europe Again

The day following this payment to Nikkei and Productos Fontanet or soon thereafter, Morgan in New York notified Nikkei by letter that the irrevocable letter of credit issued by Nigeria had been amended to provide that "[a]ll commercial invoices presented must be certified invoices and must be certified by the beneficiaries or their agents." CBN had also informed Morgan that it should not make payments for demurrage under any letter of credit which had been issued regarding any cement contract unless the documents submitted to Morgan were certified by CBN. CBN also required that Morgan not "pay against documents presented in respect of letters of credit ... unless such documents are accompanied by certificates confirming that clearance [for shipping] has been obtained for the ships to sail to Nigeria." See letters dated September 30, 1975 from Morgan to Nikkei.[4] Nikkei had not agreed to the addition of these conditions for payment under the letter of credit.

On or about October 8, 1975, Nikkei's president and principal shareholder, Tetsuo Ozawa, traveled from New York City to Lagos, Nigeria to meet with the Cement Negotiating Committee of the Nigerian government at the Committee's request. The meeting took place at CBN's offices. The purpose of this visit was to discuss the rescheduling of cement deliveries. At that *900 meeting, Ozawa, as Nikkei's representative, was asked to cancel the cement contract and letter of credit without compensation. Ozawa declined. Ozawa again traveled to Nigeria in February, 1976 to meet with various government officials. He was again asked to discharge the contract and the letter of credit, and again he declined.

In determining whether sufficient minimum contacts are present between the defendant foreign state and the United States, the court must consider not merely whether there are sufficient contacts with respect to the contract in dispute, but more broadly whether maintenance of the suit offends "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1940). The contacts between the defendant and the forum must be such that it is reasonable to require the defendant to litigate the dispute in that forum. Id. at 317, 66 S. Ct. at 158. The factors to be considered by the court are: (1) the burden placed on the defendant in litigating in that forum; (2) the interest of the forum in adjudicating the dispute, and (3) the plaintiff's interest in obtaining convenient and effective relief. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980).

Chenax's letter of credit is silent as to what law governs its terms. It appears, however, that since Swiss law governs the terms of the underlying cement contract, it should also govern the terms of the letter of credit. Assuming arguendo that Chenax's letter of credit is governed by Swiss law rather than by New York law, the parties have nevertheless failed to definitively establish the applicable Swiss law. Therefore, this Court must assume that Swiss law regarding anticipatory repudiation of irrevocable letters of credit is the same as that of New York. Ogden Development Corp. v. Federal Insurance Co., 508 F.2d 583 (2d Cir. 1974). Accordingly, Chenax must demonstrate that it would have been ready, willing, and able to perform its obligations under the letters of credit and produce the documents required for payment thereunder to prevail on its claim against CBN. Its ability to perform the underlying cement contract will be determinative of the issue.

[11] Plaintiffs may not recover their lost profits twice, once under the cement contracts and again under the letters of credit. The letters of credit were merely the means by which plaintiffs were to be paid by Nigeria under the cement contracts.

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