国际贸易实务(英文版)(第二版)周瑞琪9.Inspection, claim, force majeure and arbitration演示教学

1、国际贸易实务(英文版)(第二版)ppt周瑞琪9.Inspection, claim, force majeure and arbitrationSEIB of GDUFS2Learning objectiveslAfter reading this chapter, you should be able toexplain ways to stipulate the place and time of inspection within the contract understand the conditions for breach of contract and settlement of

2、 claimsdescribe ways of stipulating claim clauses in a sales contractbe aware of the consequences of force majeure eventsexplain ways to stipulate force majeure clauses in a sales contractrealize the importance of arbitration in the settlement of disputes and claimsbe aware of the issues to be consi

3、dered in the negotiation of arbitrationdescribe the ways of stipulating an arbitration clause in a sales contract SEIB of GDUFS69.1.1 Time and place of inspectionlInspection at the port of shipment and re-inspection at the port of destination The goods are inspected at the port of destination and re

4、-inspected by the buyer at the port of destinationInspection results issued at the port of shipment are used as one of the documents for the seller to settle payment Inspection results issued at the port of destination serve as the basis for the buyer to claim for compensation in the case of discrep

5、anciesFavorable to both the seller and the buyer SEIB of GDUFS79.1.2 Inspection BodieslTypes of inspection bodyGovernmental inspection bodieslOwned and supervised by governmentslSpecialize in inspection of particular commodities or those subject to mandatory inspection leg. The Food and Drugs Admini

6、stration (FDA) in USA, The State Administration for Commodity Inspection (SACI) in ChinaNon-governmental inspection bodieslPrivately owned lEnjoy the same legal status lEg. Societe Generable De Surveillance S.A. (SGS) in Swiss, Lloyds Surveyors in Britain, Underwriters Laboratories (UL) in USA.SEIB

7、of GDUFS89.1.2 Inspection BodieslTasks of the inspection bodyTo inspect goods for import and exportlStatutory inspection: for mandatory inspectionlNon-statutory inspection: made on a random basisTo exercise supervision and control over the inspection To accept the entrustment for surveying services

8、and issue certificates of surveySEIB of GDUFS99.1.3 Inspection StandardlStandards Mandatory inspection: subject to the standards as specified in the Law and the RegulationsFor others, subject to the standards agreed upon in the trade contractslIf there is contradiction between the standards in the L

9、aw and the Regulations and those in the contracts, subject to the higher one.lIf the standards are not specified in the Law and the Regulations or in the contract, subject to the standards of the manufacturing country, or relevant international standards or the standards designated by the state insp

10、ection agency.SEIB of GDUFS109.1.4 Inspection CertificatelInspection Certificate of QualitylInspection Certificate of Weight or QuantitylInspection Certificate of ValuelInspection Certificate of Origin lSanitary Inspection Certificate lVeterinary Inspection Certificate lDisinfection Inspection Certi

11、ficate lInspection Certificate on Damaged Cargo SEIB of GDUFS119.1.5 Inspection clause lThe inspection clause usually contains stipulations onthe inspection rightthe time and place of inspection or re-inspectionthe inspection bodythe inspection items and the inspection certificates. SEIB of GDUFS129

12、.1.5 Inspection clause ExampleSEIB of GDUFS139.2 Disputes and Claims 9.2.1 DisputeslMain reasons for disputes breach of contract by the seller l fails to deliver the goodsl fails to present required documents breach of contract by the buyerl fails to open L/C l fails to accept the goodsl fails to di

13、spatch the vessel (FOB) breach of contract by both partiesl misunderstands contract stipulationsSEIB of GDUFS149.2.2 Claims lClaim: demand made by one party to another for a certain amount of compensation on account of a loss sustained through its negligence lTypes of claim claim regarding selling a

14、nd buying claim regarding transportation claim concerning insurance SEIB of GDUFS159.2.3 Claim clause lDiscrepancy and Claim Clause (for most transactions)Main informationlRelevant stipulations or proofslRelevant inspection authoritative bodylPeriod for lodging claimsWays to be settled l making a re

15、fundl compensating for direct losses or expensesl selling the goods at lower price l replacing the defective goods SEIB of GDUFS169.2.3 Claim clause ExampleSEIB of GDUFS179.2.3 Claim clause lPenalty Clause (for transactions in large quantity or with large mechanical equipment)“Should the Buyers for

16、their own sake fail to open the Letter of Credit within the time stipulated in the contract, the Buyers shall pay a penalty to the Sellers. The penalty shall be charged at the rate of 0.5% of the amount of the letter of credit for every ten days of delay in opening the letter of credit, however, the

17、 total penalty shall not exceed 5% of the total value of the credit which the Buyers should have opened. Any fractional days less than ten days shall be deemed to be ten days for the calculation of penalty. The penalty shall be the sole compensation for the damage caused by such delay.”ExampleSEIB o

18、f GDUFS189.3 Force Majeure 9.3.1 Force Majeure Clause Scope of Force Majeure EventslStipulation in a general way With the wording “force majeure events” only Not specific, easily leading to different interpretationSEIB of GDUFS199.2.3 Claim clause lStipulation in a specific way List all possible for

19、ce majeure events in detail But may leave out other detailsSEIB of GDUFS209.3.1 Scope of Force Majeure Events lStipulation in a synthesized way List some of the possible force majeure events in detail Add such wording as “or other cause of Force Majeure” in order not to miss the other possible cause

20、sSEIB of GDUFS219.3.1 Force Majeure Clause Notification: lNotify the buyer right after the accidents the following the force majeure event its effect on their ability of performing the contract lOtherwise, the seller will be held responsible for the loss or damage. Issuance of the certificateslAn ef

21、fective certificate concerning the actual occurrence of the force majeure event is required; otherwiselThe seller will still be held responsible for the loss or damage. SEIB of GDUFS229.3.2 Consequences of Force Majeure Events Postponement of the contract lWhen the performance of the contract is del

22、ayed temporarily lContract shall be resumed after the force majeure event Termination of the contractlWhen the performance of contract is impossible lone of the party who suffers the force majeure event may ask for the termination of the contract SEIB of GDUFS239.4 Arbitration 9.4.1 Methods of dispu

23、te settlement negotiation mediation arbitration litigation Most favorableLeast favorableSEIB of GDUFS24lDifference between arbitration and mediation ArbitrationlInvolving an impartial third partylLike an less formal court, the arbitrator hears evidence and makes a decision lThe decision is final med

24、iationlInvolving an impartial third partylThe mediator gives suggestions to the solution of disputes, butlThey do not reach a solution unless all sides agree.9.4.2 Differences among ways of dispute settlementsSEIB of GDUFS25lDifference between arbitration and litigation the way to submit arbitration

25、 or litigationlarbitration: submission to arbitration made on the agreement of both parties in advancellitigation: submission to litigation made unilaterally by one of the parties the appointment of arbitrator or judge larbitration: appointed by the parties themselves and the third appointed by the

26、arbitration institutionllitigation: appointed by the government9.4.2 Differences among ways of dispute settlementsSEIB of GDUFS26lDifference between arbitration and litigation the effectiveness of an award or verdict larbitration: award is final and binding on both parties with no right given to rev

27、ision before a law courtllitigation: verdict is not final, ie. If one party refuses, he can retain the right to appeal to a higher courtArbitration is simpler, less costly and time-consuming and more flexible, therefore is more favorable in dispute settlement. 9.4.2 Differences among ways of dispute

28、 settlementsSEIB of GDUFS27lApplying for arbitration Application shall be made in written form l the name address of the claimant and the claimeel the arbitration agreementl the facts of the disputesl the claimants claim and l the facts and evidence of the claimApplication shall be submitted to the

29、Secretariat of the Arbitration Commission The arbitration fee shall be paid in advance to the Arbitration Commission9.4.3 Arbitration procedureSEIB of GDUFS28lForming arbitration tribunal sole-arbitrator tribunal lonly one arbitrator involvedlBoth parties jointly appoint or jointly authorize the cha

30、irman of the arbitration body to appoint. collegiate tribunall three arbitrators involvedl The claimant and claimee each appoint an arbitratorsl The third one either be jointly appointed by both parties or appointed by the arbitration body. 9.4.3 Arbitration procedureSEIB of GDUFS29lHearing an arbit

31、ration case oral hearing l A date for oral hearing shall be fixed in advancel Communicate to the parties concerned 30 (in foreign-related cases) or 15 days (in domestic cases) before the date for oral hearing the omission of an oral hearinglOmission of an oral hearing shall be made at the request of

32、 the parties or with the consent of the parties; andl be approved by the arbitration tribunal.If the oral hearing is omitted, an award shall be made based on the documents only.9.4.3 Arbitration procedureSEIB of GDUFS30lIssuing an award Time for the issuancel for arbitration without oral hearing: wi

33、thin 9 months from the date of the formation of arbitration tribunal l for arbitration based on oral hearing: within 30 days from the date of the oral hearing The date of issuance is the date on which the award becomes effective.The arbitration award is final and binding upon both parties.9.4.3 Arbi

34、tration procedureSEIB of GDUFS31lSetting aside an award In case of inconformity in the statutory procedure in the award, for examplel no arbitration clause in the contract, orl no subsequent written arbitration agreement included, orl the appointment of an arbitrator or the formation of an arbitration tribunal not in consistent with arbitration rulesthe party concerned can apply for setting aside the arbitral award.9.4.3 Arbitration procedureSEIB of GDUFS32lEnforcing an awardIf an award is not executed within time l