大三第三學(xué)期國際貿(mào)易實(shí)務(wù)chapter8inspection claim fm and arbitration

1、Chapter Eight Inspection, Claim, Force Majeure and Arbitration chapter 8 2focusfocusDispute and claiminspectionexercises and assignmentarbitrationchapter 8 33claim and claim settlementArbitration, Arbitral awardBreach of Contract, dispute,Force MajeureLanded quality, landed qeight, Key wordsKey word

2、schapter 8 4claiminspectionForce MajeurearbitrationLogic sequence of this chapterClaim settlementdisputechapter 8 5I. Commodity Inspection A commodity inspection certificate will serve to ascertain where the trouble lies and who is to blame. Before delivery, the manufacturers shall make a precise an

3、d comprehensive inspection of the goods with regard to its quality, specifications, performance and quality or weight, and issue an inspection certificate certifying the technical data and the conclusion of the inspection.Inspection- definitionchapter 8 6vII. Place and time of inspection v2.1 inspec

4、tion at the factoryv2.2 inspection before shipment: at the port of shipmentv2.3 inspection at the import countryv2.4 inspection at the port of shipment and reinspection at the port of destination(popular)v2.5 weight inspection at the port of shipment and quality reinspection at the port of destinati

5、onInspection place and time of inspectionchapter 8 7vII. Inspection bodiesGeneral Administration of Quality Supervision, Inspection and Quarantine of the Peoples Republic of China (AQSIQ)Inspection inspection bodieschapter 8 8World famous inspection authorities:1.Food and Drugs Administration (FDA美國

6、食品藥物管理局 )2.Societe Generale De Surveillance (SGS瑞士通用公證行)3.Nippon Kaiji Kentei Kyokai (NKKK日本海事鑒定協(xié)會(huì) )4.Lloyds Register (勞氏船級社)5.Underwriters Laboratories (UL美國保險(xiǎn)人實(shí)驗(yàn)室)II. Inspection AuthoritiesInspection inspection bodieschapter 8 9vIII. Certificates 1. Quality/Weight/Quantity certificatev2. certifica

7、te of originv3. value certificate /damaged goods certificateVeterinary Inspection Certificate (獸醫(yī))Sanitary Inspection Certificate（衛(wèi)生）Disinfection Inspection Certificate（消毒）Inspection inspection certificateschapter 8 10vIV. Inspection Clause in ContractvBoth Buyer and Seller agree to inspect the good

8、s (1) before shipment at the port of shipment. The (2) quality and weight certificate issued by (3) State General Administration of the Peoples Republic of China for Quality Supervision and Inspection and Quarantine will be regarded as a part of documents presented for negotiation under the L/C. The

9、 Buyer has the right (4) re-inspect the goods delivered at the port of destination by an inspection bureau agreed by both parties. In case the quality, quantity and packaging of the goods are found not in accordance with those stipulated in the contract, the Buyer should provide the inspection repor

10、t issued by authority agreed by the Seller the duration for lodging claims should be within twenty days after the arrival of the goods at the destination port.Inspection inspection clausechapter 8 11vI. Disputesv1.1 reasons of disputesv1.2 breach of contractv China: discrepancy and claim clauseClaim

11、 and claim settlement disputeschapter 8 12vII. Claim v2.1 the party who breaches the contract will settle the claimv2.2 amicable practical and realistic attitudeClaim and claim settlement claimchapter 8 13vIII. Discrepancy and Claim clause v3.1 proof clause and claim periodv3.2 clause (2)Claim and c

12、laim settlement discrepancy and claim clausechapter 8 14vIV. Penalty Clause Contract for bulk commodities or machines and equipment will include not only “discrepancy and claim” clause but also “penalty” clause. “Should the Buyer fail to open the L/C on time stipulated in the contract, the Buyer sha

13、ll pay a penalty to the Seller. The penalty shall be charged at the rate of the 1% of the amount of L/C for every ten days of delay.”Claim and claim settlement penalty clausechapter 8 15vI. Force Majeure Force Majeure is exempting clause which refers to that a party under a foreign trade contract is

14、 exempted for non-fulfillment of his obligations totally or partially as a result of conditions beyond his control, such as earthquake, flood or war, etc.1). Happens after the signing of the contract2). Not due to the negligence of either party3). No party can control the situationForce Majeurechapt

15、er 8 16vII. Force Majeure reasons and results. v1. Accidents caused by natural phenomena e.g. earthquake, flood, tsunami 2. Accidents caused by social factors e.g. war, strike, embargo A contract may be suspended or terminated because of the consequence of a force majeure case.Force Majeurereasons a

16、nd resultschapter 8 17vIII. Force Majeure clauses vThe majeure in contract may be stipulated in three ways:v(1) Generalizing (概括式)v(2) Listing （列舉式）v(3) Combining （綜合式）Force Majeure clausechapter 8 181. Conciliation (友好協(xié)商) ：best for the traders2. Arbitration (仲裁)：second-best for the traders3. Litiga

17、tion (訴訟)：the last resortarbitrationchapter 8 19vI. Arbitration Arbitration is a means of settling a dispute between two parties through the medium of a third party who is not partial to either of the parties to the dispute, and whose decision on the dispute is final and binding i.e., neither party

18、shall bring an appeal for revision before a court of law or any other organizations.arbitrationchapter 8 20 II. Advantages of Arbitration: 1. The parties concerned are free to choose the arbitrators (仲裁員).2. There is less time-consuming in settling the dispute through arbitration.3. The procedure of

19、 arbitration is more informal than in court, therefore, the parties dont need to be represented by lawyer.4. Privacy can be maintained in both the arbitration hearing and the award.5. The procedure of arbitration is simpler and the cost cheaper.6. The arbitral award is final and has binding force up

20、on the parties concerned.Arbitration- advantageschapter 8 21vIII. Organization of Arbitration v1. Arbitration Court of International Chamber of Commerce (國際商會(huì)仲裁庭院)v2. The London Court of Arbitration（倫敦仲裁院）v3. American Arbitration Association （美國仲裁協(xié)會(huì)）v4. Incorporated Oil Seed Association （倫敦油籽協(xié)會(huì)）v5.

21、London Corn Trade Association （倫敦谷物商業(yè)協(xié)會(huì)）v6. China International Economic and Trade Arbitration Commission (中國國際經(jīng)濟(jì)貿(mào)易仲裁委員會(huì)）v7. Maritime Arbitration Commission (海事仲裁委員會(huì))Arbitration- organizationchapter 8 22vIV. Award of Arbitration vThe arbitration award is final and bingding upon both parties. Arbitra

22、tion-awardchapter 8 23vV. Arbitration Clause in Contract v1). v2). Arbitration- clausechapter 8 24v1. Risks in transit in respect of the quality and the quantity of the goods shall be born by the buyer if required the inspection at the factory in the exporting country. v2. In the inspection standard

23、, if the trade is conducted against the sample, the inspection shall be performed simultaneously according to the sample provided.v v3. The agency to inspect the commodities in international trade must be decided by the seller and the buyer. Exercise and assignmentchapter 8 25v4. When EXW or DDP is

24、used, the commodity is generally inspected in the exporting country. v5. All export commodities should be inspected by commodity inspection bureaus. v6. Once the payment of penalty is made, the contract is no longer to be performed. v7. In international commodity sales contract, penalty and compensa

25、tion for the losses is the same thing. Exercise and assignmentchapter 8 26v6. Landed quality and weight means that the inspection carried out at the port of destination will be final. v7. For one contract, the same method of inspection should be used for inspection and reinspection to avoid disputes

26、.v8. There is no need to inspect the goods which do not need legal inspection. v9. Goods shall firstly meet the standards stipulated in laws and regulations when the inspection standards are specified by laws or regulations. Exercise and assignmentchapter 8 2710. If the inspection certificates are o

27、verdue, the goods concerned need to be reinspected. v11. The commodity inspection authorities shall go through the procedures for inspection and issue a certificate without delaying shipment. v12. Import commodity subject to legal inspection can not be marketed or used before being inspected. v13. S

28、ometimes, the inspection certificates are necessary for claiming compensation. Exercise and assignmentchapter 8 28v14. The seller should bear the loss caused by Force Majeure. v14. In foreign trade, the import or export contract provides legal basis for determining the rights and obligations of sell

29、er and buyer.v15. In practice, for 0.5% of weight difference in inspection results at ports of shipment and destination, inspection result at the port of shipment can be considered final or the difference can be divided between the buyer and the seller.v16. Breach of a contract arises where any part

30、y of a contract does not abide by the stipulations of the contract. Exercise and assignmentchapter 8 29v17. Once made, the arbitral award is the final decision and has the force of law. v18. Arbitration has not become the most popular method in international trade to settle disputes. v19. The most s

31、atisfactory way for a seller and a buyer to settle the disputes is by means of arbitration. Exercise and assignmentchapter 8 30 1. “Shipping Weight and Landed Quality” means_. vA. to make inspection at the port/place of destinationvB. to make inspection at the port/place of destinationvC. to make in

32、spection in the exporting country and make reinspection in the importing country vD. to make inspection at the port/place of shipment to take shipped weight as final and make reinspection at the port/place of destination to make take landed quality as finalv2. Among those inspection methods, the mos

33、t commonly used one is_. vA. to make inspection at the port of shipmentvB. to make inspection at the port of destinationvC. to make inspection in the exporting country and make reinspection in the importing country. vD. to make inspection at the port of shipment to take shipped weight as final and t

34、o make reinspection at the port of destination to take landed quality as final.Exercise and assignmentchapter 8 31v3. An exporter delivered the goods according to the stipulation of contract, and submitted clean B/L to the importer. After receiving the goods, the importer found that the goods are da

35、maged because of the damage to the outside packing. There is also a sea protest showing that the damage is due to heavy weather. Whom should the importer claim to? _vA. Shipping company B. Insurance company C. Seller D. Buyerv4. When_ happens, the party that fails to perform the contract is allowed

36、to relieve liabilities of the non-performance.vA. war B. world market price goes up C. manufacture fault D. currency devaluationExercise and assignmentchapter 8 32v5. In international commodity sales, the commonly used way to stipulate force Majeure clause is _. vA. in a general way B. without stipu

37、lation vC. in a way to list the scope D. in a comprehensive wayv6. The necessary condition of settling disputes through arbitration is that _. vA. the seller and buyer have an arbitration agreement or an arbitration clause in the contract vB. the seller and buyer have contractvC. the case cant be settled through conciliationvD. one party comes to nothing through litigationv7. Which descriptions of arbitration award are not correct? _vA. The award is usually final. vB. The seller or buyer can sue in a law court about the award. vC. If the award is not executed by one party, the other may ask