國際貿(mào)易理論與實務(wù)（英文版）Ch.16Inspection.ppt

1、,CHAPTER 16 INSPECTION, CLAIM, FORCE MAJEURE AND ARBITRATION Commodity Inspection Claim Force Majeure Arbitration,1 Commodity Inspection,Importance of commodity inspection An indispensable part in the transfer of the goods. A buyer has not lost his right to reject the goods unless and until he has h

2、ad a reasonable opportunity of examining them. On most occasions, inspection by authoritative, impartial inspection bodies is required. The certificates issued by inspection bodies serve as proofs for transferring the goods, lodging and settling claims . ,2. Time and places of commodity inspection (

3、1) Provisions in CISG (Article 38), The buyer must examine the goods, or cause them to be examined, within the shortest period., If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination.,If redirected in transit or re-dispatc

4、hed, the seller knew or ought to have known of the possibility of such redirection or re-dispatch, examination may be deferred until the goods have arrived at the new destination.,(2) Three ways of stipulating the place and time of inspection in the contract, Shipping quality and weight;, Landed qua

5、lity and weight;, Inspection at the port of shipment and re-inspection at the port of destination.(),3. Commodity inspection body,Governmental,AQSIQ: General Administration of Quality Supervision, Inspection and Quarantine (China) FDA: Food and Drugs Administration (USA),SGS: 瑞士日內(nèi)瓦通用鑒定公司 UL: 美國保險人實驗

6、室 Lloyd Surveyor, B.V. 英國勞合氏公證行 NKKK: 日本海事鑒定協(xié)會,Non- governmental,Three basic tasks of the State Commodity Inspection authorities (China):,Statutory Inspection,Formulate the List of Import and Export Commodities Subject to Inspection Enforced by the Commodities Inspection Authorities, System of impor

7、t safety license and export quality license. Hygiene registration system. Quality certification marks. Commodity inspection marks.,Supervision and control,Survey,Accept the entrustment for surveying service of import and export commodities,4. Commodity inspection standards The mandatory standards; (

8、2) The standards stipulated in the contract; (in the absence of mandatory standards or the mandatory standards are lower) (3) The standards of the producers country. (if the above two are not available),5. Commodity inspection clause “ It is mutually agreed that the Inspection Certificate of Quality

9、 and Quantity (weight) issued by the China Import and Export Commodity Inspection Bureau at the port of shipment shall be part of the documents to be presented for negotiation under the relevant L/C. The Buyers shall have the right to re-inspect the quality (weight) of the cargo. The re-inspection f

10、ee shall be borne by the Buyers. ”,2 Claim,Liabilities of breach of contract (1) Implication of breach of contract Breach of contract: Actual failure or refusal to perform contract without a legitimate legal excuse. Seller: fails to deliver the goods; fails to deliver the goods within stipulated tim

11、e; delivers the goods that do not conform to the contract. Buyer: fails to open the relevant L/C; wrongly refuses to accept the goods; fails to dispatch vessel under FOB.,(2) Liabilities of breach of contract,2. Claim clause in the contract Discrepancy and claim clause “ Claim: Any claim by the Buye

12、rs regarding the goods shipped shall be filed within 30 days after arrival of goods at the port of destination specified in the relative Bill of Lading and supported by a survey report issued by a surveyor approved by the Sellers.”,(2) Penalty clause Penalty clause regarding the Sellers delay in del

13、ivery “Should the Sellers fail to make delivery on time as stipulated in the contract, the Buyers shall agree to postpone the delivery on condition that the Sellers agree to pay a penalty which shall be deducted by the paying bank from the payment under negotiation, or by the Buyers direct at the ti

14、me of payment. The rate of penalty is charged at 0.5% of the total value of the goods whose delivery has been delayed for every seven days, odd days less than seven days should be counted as seven days.,But the total amount of penalty, however, shall not exceed 5% of the total value of the goods inv

15、olved in the late delivery. In case the Sellers fail to make delivery ten weeks later than the time of shipment stipulated in the contract, the Buyers shall have the right to cancel the contract and the Sellers, in spite of the cancellation, shall still pay the aforesaid penalty to the Buyers withou

16、t delay.”, Penalty clause regarding the Buyers delay in opening of L/C “Should the Buyers for its own sake fail to open the letter of credit on 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

17、 of Credit for every ten days of delay in opening the Letter of Credit, however, the 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 sha

18、ll be the sole compensation for the damage caused by such delay.”,3 Force Majeure,1. The meaning of force majeure An impediment beyond control, which the contracting party could not reasonably be expected to have taken into account at the time of concluding the contract or to have avoided or overcom

19、e it or its consequences. Natural phenomena: earthquake, flood, tempest, war Social factors: governmental prohibition of import and export of certain commodities, etc.,2. The consequences of force majeure Termination of contract: If the basis of the contract has been damaged or destroyed. Example: t

20、he fire has burnt a famous painting by Pablo Picasso. Suspension of contract: If the performance of contract is just delayed by a force majeure case temporarily or for a short time. Example: a delayed shipment because of industrial strike.,3. Force majeure clause in the contract (1) The scope of for

21、ce majeure events; (2) Time limit of notifying the other party; (3) The issuer of the certificate. “Force majeure: If the shipment of the contracted goods is prevented or delayed in whole or in part by reason of war, earthquake, flood, fire, storm, heavy snow or other causes of Force Majeure, the se

22、ller shall not be liable for non-shipment or late shipment of the goods or non-performance of this contract. However, the seller shall notify the buyer by telex or fax and furnish the latter by registered airmail with a certificate issued by the China Council for the Promotion of International Trade

23、 attesting such event or events.”,4 Arbitration,The ways of settlement of disputes Conciliation: Disputes can be settled in an amicable way (2) Arbitration: Most popular method. (3) Litigation: expensive, slower, unfriendly atmosphere.,2. Features of arbitration A written agreement to resolve disput

24、es by arbitration between the parties to a contract is required. The arbitration body is a civilian institute, which does not have statutory jurisdiction. Arbitration awards are final and binding without the recourse to appeal or retrial (復(fù)審). The arbitral award is legally enforceable.,3. Advantages

25、 over court proceedings Speed: In many cases an arbitration can be heard without the long delay as it is possible to choose arbitrators to suit the timetable of the parties. (2) Flexibility: Parties to an arbitration contract are free to customize and refine the basic arbitration procedures to meet

26、their particular needs. (3) Confidentiality and Goodwill: Without the consent of the parties, a third party will not be allowed to participate in the process. Hearings are usually held in a less adversarial setting.,4. Arbitration agreement (1) Place of arbitration: in the country of either party, o

27、r in a third country. (2) Organization of arbitration: permanent or provisional; Permanent: Arbitration Court of International Chamber of Commerce, China International Economic and Trade Arbitration Commission. (3) Procedure of arbitration: (4) Applicable rules of arbitration: In principle, the rule

28、s in the arbitration place. But arbitration rules do not always go with the arbitration place.,(5) Award of arbitration The arbitration clauses often bear such words that “The arbitration award is final and shall have binding force upon the two parties” so as not to cause ambiguities. (6) Fees of arbitration An arbitration clause shall provide that the arbitration fees shall be borne by the losing party.,(6) Fees of arbitration “Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination of invalidity thereo