主讲教师:夏夕美
Import & Export Practices
all the terms
and conditions
agreed upon
Description of commodity
Quantity
Package
Price
Body
Payment
Transport
Insurance
Inspection
Claims & dispute
Import & Export Practices
主讲教师:夏夕美
Import & Export Practices
one
two
Breach of
Contract
claims
Import & Export Practices
1. Breach of Contract

Breach of contract means the
refusal or failure by a party to a
contract to fulfill an obligation
imposed on him under that
contract, resulting from, e. g. ,
repudiation of liability before
completion, or conduct
preventing proper performance.
Import & Export Practices
1. Breach of Contract
where
it has the effect of
 depriving
The contract
discharged
where
theis
party
who has
the breach
results in the
further
undertakings
still to
innocentof
party
treating itthe
as
perform
substantially
rescinded
and which it was the
whole
benefit
intention of the parties as
expressed in the contract as the
consideration for performing
those undertaking.
Import & Export Practices
The kinds of Breach of
Contract
1) Breach by the Seller
2) Breach by the Buyer
3) Both Parties are held
responsible
Import & Export Practices
各国法律对违约的不同规定
1、英国法的规定
 违反要件(Breach of Condition)
 违反担保(Breach of Warranty)
 2、美国法的规定
 重大违约(Material Breach of
Contract)
 轻微违约(Minor Breach of Contract)

Import & Export Practices
各国法律对违约的不同规定
3、《公约》的规定(第25条)
 根本性违约(Fundamental Breach of
Contract)
 非根本性违约(Non-Fundamental
Breach of Contract)




4、我国《合同法》的规定
一方违约,另一方有权要求赔偿损失或者采取其他
的合理补救措施,若取其他的合理补救措施仍然不
能完全弥补损失,另一方仍有权要求赔偿损失。
若双方违约,各自承担相应的责任
Import & Export Practices
违约分类
英国
美国
后果
违反要件
受损害方可宣告合同无
效,并要求损害赔偿
违反担保
要求损害赔偿或救济
重大违约
轻微违约
根本性违约
公约
非根本性违约
Import & Export Practices
2. Claim and Satisfaction
Claim means that in
international trade, one party
breaks the contract and causes
losses to the other party
Satisfaction means that the
directly or indirectly, the party
party breaking the contract
suffering the losses may ask for
declares that he will accept and
compensation for the losses.
handle the claim.

Import & Export Practices
2. Claim and Satisfaction
In
import and export business,
claims regarding quality and
quantity or weight are common,
even though proper inspection of
the goods has been conducted by
designated surveyors or public
inspection bureaus. The goods
may have been damaged or lost
during transit.
Import & Export Practices
To file or to settle a claim,
the following points should
be first considered:
(1)
whether the claim is justified
by the contract
(2)
whether the claim is made in
time
whether the claim is well
(3)
supported by good documentation
Import & Export Practices
settle the claim

The sellers may settle the claim
upon the agreement of the
buyers in the following three
ways:
Import & Export Practices


(1) Agree to the rejection of the
and
bear
all
direct
losses
and
goods and refund to the buyers
expenses
incurred
from
the
the value of the rejected goods
rejection,
including
interest,
in the same
currency
as
banking
charges,
freight,
contracted herein,
insurance premium, inspection
charges, storage charges and all
other necessary expenses
required for the custody and
protection of the rejected goods.
Import & Export Practices

(2) Devaluate the goods according
to the degree of inferiority, extent
of damage and amount of losses
suffered by the buyers.
Import & Export Practices

(3) Replace the defective goods
with new ones which conform
to the specification, quality and
performance as stipulated in
the contract, and bear all
expenses incurred and direct
losses sustained by the buyers.
The sellers shall, at the same
time, guarantee the quality of
the replaced goods for a further
agreed period.
Import & Export Practices
3. Claim Clause in the
contract
In
some contract, the two
parties often stipulate clauses
on settlement of claim as well
as inspection and claim
clauses.
Import & Export Practices
Claim
Clauses
1)
Discrepancy
and claim
clause
2)
Penalty
clause
Import & Export Practices
1) The discrepancy and
claim clause
 For a moderate contract
the
buyer
should makeaa
general
merchandise,
of
claim
against
the seller
the time
discrepancy
and within
claim clause
is
limit
of included.
re-inspection and claim
often
with the support of a survey
 In case
the goods
delivered are
report
issued
by a surveyor
inconsistent
with
the contract
accepted
by the
seller.
stipulations for quantity, quality,
packaging, etc,
Import & Export Practices
Problems Should be Paid
索赔金额:一般只做笼统规
Attention
to When a
定,应该包括实际损失加上
Buyer Files
a
Claim
预期利润
(1) Proofs for claiming
(2) Claim amount
(3) Claim Period
(4) Seller's Responsibility for
《公约》规定若合同没有约定索赔期限,子
Settlement
买方实际收到货物之日起算2年内索赔
Import & Export Practices

In case of quality discrepancy,
claim should be lodged by the
Buyers within 30 days after the
arrival of the goods at the port of
destination, while for quantity
discrepancy, claim should be
lodged by the Buyers within 15
days after the arrival of the
goods at the port of destination.
Import & Export Practices
In all cases, claims
must be accompanied
by Survey Reports of
Recognized Public
Surveyors agreed to by
the Sellers.
Import & Export Practices

Should the responsibility of the
subject under claim be found to
rest on the part of the Sellers,
the Sellers shall, within 20 days
after receipt of the claim, send
their reply to the Buyers
together with suggestion for
settlement.
Import & Export Practices
2) Penalty clause
 For
a contract covering a huge
shipment of goods or high
A penalty
is often
a as a
value
equipment
such
certain plant,
percentage
complete
a penalty
of the total contract
clause may
also
be
included
value.
and quoted when one party
fails to implements the
contract such as non-delivery,
delayed delivery, etc.
Import & Export Practices
2) Penalty clause
but paying the penalty does not
mean that the contract can be
avoided.
 In other words, the party that has
failed to implement the contract
must carry out his contract
obligations in spite of his payment
of the penalty.

Import & Export Practices
2) Penalty clause
定金不同于预付款:
 预付款又称订金,不具有担保合同履行的
作用,收取订金的一方违约,只需要退还
预付款即可。而收取定金的一方则需要双
倍返还定金。

Import & Export Practices
案例分析1:
–中国某公司与欧洲某进口商签定一份皮具
合同,以CIF鹿特丹成交,向保险公司投
保一切险,用信用证支付。货到鹿特丹后,
检验结果表明:全部货物潮湿、发霉、变
色,损失价值10万美元。据分析,货物损
失的主要原因是由于生产厂家在生产的最
后一道工序中,未将皮具湿度降到合理程
度。
Import & Export Practices
案例分析1:
–问:
–1、进口商对受损货物是否支付价款?
–2、进口商应向谁索赔?
Import & Export Practices
案例分析2
某国一公司以CIF鹿特丹出口食品1000箱,
即期信用证付款,货物装运后,出口商凭
已装船清洁提单和已投保一切险及战争险
的保险单,向银行收妥货款。货到目的港
后,经进口商复验发现下列情况:
 1.该批货物共有10个批号,抽查20箱,发
现其中2个批号涉及200箱内含有沙门氏细
菌超过合同标准;

Import & Export Practices
案例分析2
2.收货人实际收到998箱,缺少2箱;
 3.有15箱货物外表状况良好,但箱内货
物共缺少60公斤;
 问:根据上述案情,进口商应分别向谁
索赔?

Import & Export Practices
主讲教师:夏夕美
Import & Export Practices
Disputes

In international trade, disputes
often arise between the two
parties when one party thinks
that the other fails to carry out
the duties stipulated in the
contract wholly or partially,
which very likely leads to claim,
arbitration and legal action.
Import & Export Practices
Dispute commonly to be
settled by 3 ways:
Consultation
Conciliation
Arbitration
Litigation
Import & Export Practices
If
the disputes cannot be
settled through amicable
negotiation or mediation,
arbitration will be the next
best alternative, as litigation
is usually costly and timeconsuming.
Import & Export Practices
The definition of
arbitration

Arbitration means that the two
parties, before or after the
disputes arise, reach a written
agreement that they will submit
the disputes which cannot be
settled through amicable
negotiations to the third party
for arbitration.
Import & Export Practices
The definition of
arbitration

In other words, both parties
while disputing, according to
the agreement between both
sides, choose certain
organization as the third part,
to judge the fact of the dispute
or the rights and obligations,
thus solve the dispute.
Import & Export Practices
Arbitration
before the
disputes arise
is chosen on
basis of
arbitration
clause in
contract
Arbitration
after the
disputes arise
is chosen on
basis of a
written
agreement of
arbitration
Import & Export Practices
The functions of
arbitration agreement
3) The arbitration agreement

1) Arbitration
agreement of
is the
eliminates
the jurisdiction
basisover
for settlement
disputes,
court
the relativeof
case.
In
and an
is binding
upon
both parties.
case
arbitration
agreement
is
reached,
the warranty
interested
parties

2) It is the
for
can’t
appeal authorities
to the courtand
arbitration
anymore.
arbitrators to obtain the
jurisdiction.
Import & Export Practices

Arbitration: All disputes in
connection with this Contract or
the execution there of shall be
amicably settled through
negotiation. In case no
settlement can be reached
between the two Parties, the
case under dispute shall be
submitted to the Trade
Arbitration Commission of the
China Council for the Promotion
of International Trade for
arbitration.
Import & Export Practices

The arbitration shall take place
in Beijing, China and shall be
executed in accordance with the
Provisional Rules of Procedure
of the said Commission and the
decision made by the Arbitration
Commission shall be accepted as
final and binding upon both
parties. The fees for arbitration
shall be borne by the losing
Party unless otherwise awarded.
Import & Export Practices
Advantage of arbitration
Arbitration provides an economic,
expeditious and informal remedy
for settlement of commercial
disputes as the circumstances
allow.
 Arbitration proceedings are
conducted in privacy and the
awards are kept confidential.

Import & Export Practices
 仲裁的特点及与诉讼的区别
协商和调解强调自愿性,双方都同意才能
进行;
 诉讼不存在自愿问题,诉讼的提起可以单
方面进行,审理后的判决也具有强制性;
 仲裁方式既有自愿性的一面,又有强制性
的一面。自愿性主要体现在仲裁的提起,
要有双方达成的协议;强制性则表现在仲
裁裁决是终局性的,双方必须遵照执行。

Import & Export Practices
 仲裁的特点及与诉讼的区别

对于双方当事人来说,仲裁比诉讼具有
较大的灵活性,因为仲裁员不是由国家
任命而是由双方当事人指定的。而且仲
裁员一般都是贸易界的知名人士或有关
方面的专家,比较熟悉国际贸易业务,
处理问题一般比法院迅速及时,费用也
比较低。
Import & Export Practices
Issues should be considered in
the negotiation of arbitration :
Add Your Text
Add Your Text
Arbitration flow
Applicable
arbitration rules
Add Your Text
Place of Arbitration
Arbitration Body
Add Your Text
Import & Export Practices
1. Arbitration Body
1)
A
B
C
permanent organization:
provides facilities and personnel
the International Chamber of
Commerce ( ICC ) ;
American Arbitration Association
the China International
Economic and Trade Arbitration
Commission.
Import & Export Practices
1. Arbitration Body
2) temporary arbitration tribunal :
set up for a particular dispute.
Import & Export Practices
2. Place of Arbitration
We shouldfor
tryarbitration:
our
Locations
best to choose
the

national arbitration
 anywhere in the seller's country,
organ or the
the buyer's country or a third
arbitration organ of
country.
the third country.

Import & Export Practices
3. Applicable
arbitration rules
arbitration
rules of the China
International Economic and
Trade Arbitration Commission.
Import & Export Practices
4. Arbitration case flow
1) Submit dispute to arbitration:
 If a dispute is to submitted to a
permanent organization, the
application is sent directly to the
tribunal and to the defendant
(also called respondent).
 If the dispute is to be submitted
to a temporary organization, the
application is sent directly to the
defendant.

Import & Export Practices
4. Arbitration case flow
2) Appoint arbitration:
must
 Judicialpoints
systems
do be
not allow the
parties to
a dispute in
to choose
considered
their selecting
own judges.
arbitrator:
 In contrast,
offers the
number arbitration
of arbitration
parties the unique
and opportunity to
designate
persons of of
their choice
qualifications
as arbitrators.
arbitrators.

Import & Export Practices
4. Arbitration
case
flow
Another possibility is
that aachief
arbitrator
Normally
board
of arbitration
is appointed
by the
consists
of three arbitrators.
arbitration
 Firstly, the
plaintiff and the
organization
defendant
chooseand
onethe
arbitrator
chief arbitrator
respectively.
appoints two other
 Then, a third arbitrator is
arbitrators.
appoint by the arbitration
organization.

Import & Export Practices
4. Arbitration case flow

It is also important to consider
the qualifications of the
arbitrators, particularly the
nationality and the professional
background, to ensure an
impartial and quality award.
Import & Export Practices
4. Arbitration case flow
3) Hear a case:
 Case hearing can be carried out
by face-to-face reply or
correspondence.
 In some countries, the tribunal
can give the order of interim
measures of protection while the
arbitration is going on.

Import & Export Practices
4. Arbitration case flow
4) Issue an award:
 After the hearing, the arbitrator
will deliberate the case and then
serve an award the decision
make by the arbitration tribunal
after deliberation.
 It must be in written form with
or without explanations or
reasons.

Import & Export Practices
* Effect of arbitration
Award

An arbitration award is “final
and binding” in most countries
provide that there are no
illegal actions by any party
involved in the arbitration
process.
Import & Export Practices
* Effect of arbitration
Award
In other words, an arbitration
award is subject to review by a
court only on a very limited basis.
 If one party refuses to obey the
award, the other can ask a court
to enforce the implementation of
the award.

Import & Export Practices
* Fees

Fees can be borne by the losing
party of the dispute, can be
divided between the two parties
or can be paid according to the
award.
Import & Export Practices
案例分析:

甲方与乙方签定了出口某货物的合同一份,
合同中的仲裁条款规定:“凡因执行本合
同发生的一切争议,双方同意提交仲裁,
仲裁在被诉方国家进行。仲裁裁决是终局
的,对双方都有约束力。”合同履行过程
中,双方因品质问题发生争议,于是将争
议提交甲国仲裁。经仲裁庭调查审
Import & Export Practices
案例分析:
理,认为乙方的举证不实,裁决乙方败
诉。事后甲方因乙方不执行裁决向本国
法院提出申请,要求法院强制执行,乙
方不服。
 问:乙方可否向本国法院提请上诉?为
什么?

Import & Export Practices
主讲教师:夏夕美
Import & Export Practices
1. Definition of force
majeure
•Force majeure means that the
frustration of the contract by
the party in question results
from natural or social forces
beyond the control of man.
Import & Export Practices
1. Definition of force
majeure
•This party shall be free from
liability for performance, or be
given an option of prolonging the
performance of the contract
owing to the above-mentioned
event or series of events.
Import & Export Practices
2. Features of force
majeure
A force majeure event should
have the following features:
1
2
3
Externality
Unforeseeability
Unavoidability
Import & Export Practices
1
Externality
it is not due to the
negligence of the
buyer or the seller;
Import & Export Practices
2
Unforeseeability
it happens after the
contract is signed and
is unforeseeable at the
time of conclusion of
the contract;
Import & Export Practices
neither the buyer nor
the seller can control
the situation and it is
completely impossible
to perform the
obligation.
3
Unavoidability
Import & Export Practices
补充:
 英美法中——“合同落空”
 它是指买卖合同签订后,不是由于合同
当事人的过失或疏忽,而是由于发生了
大陆法系——
“情势变迁”或“契约失效”
合同当事人无法预见、无法预防、无法
避免和无法控制的事件,以致不能履行
 注意:市场风险、商品价格波动、汇率变
或不能如期履行合同,发生意外事故的
化等均不能视为不可抗力事件。
一方可以免除履行合同的责任或推迟履
行合同

Import & Export Practices
3. The scope of force
majeure events
There are two kinds of force
majeure:
1) Certain natural disasters such as
flood, earthquake volcano (Act of
God)
2) social disturbances such as war,
strike, riot and government
decrees of prohibition

Import & Export Practices
4.The result of force
majeure events
Non-performance of the
 This
party shall be free from
contract;
liability
for performance,
–
delay performancing
theor be
contract。
given
an option of prolonging
the performance of the contract
owing to the above-mentioned
event or series of events.
–
Import & Export Practices
1) Termination of contract
Non-performance of the contract

In cases of natural disasters of
other events that have made it
impossible to fulfill the
contract, the contract can be
terminated.
Import & Export Practices
2) Postponement of contract

In cases lf events (such as
transportation stoppage caused
by an earthquake ) that will only
delay the fulfillment of a contract,
the contract can be postponed but
not terminated since it is still
possible for the seller to carry out
contract obligations.
Import & Export Practices
5. Points to remember
when quoting the clause
(1)
Decide if an accident is
within the scope according
to the contract terms.
Import & Export Practices
5. Points to remember
when quoting the clause
(2)
In case
of aother
forceparty
majeure event,
(The
the should
party who
quotes
the
clause
reply quickly
shouldifgive
promptor
notice to the
he agrees
other party
within a specified
disagrees.)
time limit.
Import & Export Practices
5. Points to remember
when quoting the clause
(3)
A force majeure
event should
also be verified by a certificate
Supply the certificate
that attests such an event.
issued by the correct
 The
issuer of the certificate
agency.
should be mentioned in the
clause.

Import & Export Practices
In order to clarify what the term
of force majeure covers under a
particular contract, different ways
have been adopted.
1) Stipulate the Force Majeure
Clause in a General Way 概括式
 2) Stipulate the Force Majeure
Clause in a Way to List the
Contents 列举式
 3) Stipulate the Force Majeure
Clause in a Way to Colligation 综合式

Import & Export Practices
* General stipulation: “generally
recognized force majeure causes”;
 * specific listing: war, flood,
storm, heavy snow;” or
 * specific listing plus general
stipulation: war, flood, storm,
heavy snow or any other causes
beyond their control/and other
generally recognized force
majeure causes”.

Import & Export Practices
There are basically three ways
set the scope:
 * General stipulation: “generally
recognized force majeure causes”;
 * specific listing: war, flood,
storm, heavy snow;” or
 * specific listing plus general
stipulation: war, flood, storm,
heavy snow or any other causes
beyond their control/and other
generally recognized force
majeure causes”.

Import & Export Practices
案例分析1:

有一份合同,印度A公司向美国B公司出
口一批黄麻。在合同履行的过程中,印
度政府宣布对黄麻实行出口许可证和配
额制度。A公司因无法取得出口许可证而
无法向美国B公司出口黄麻,遂以不可抗
力为由主张解除合同。问:印度公司能
否主张这种权利?为什么?
Import & Export Practices
案例分析2:

我某出口企业以CIF纽约条件与美国某公
司订立了200套家具的出口合同。合同规
定2001年12月交货。11月底,我企业出口
商品仓库因雷击发生火灾,致使一半以上
的出口家具被烧毁。我企业遂以不可抗力
为由要求免除交货责任,美方不同意,坚
持要求我方按时交货。
Import & Export Practices
案例分析2:
我方经多方努力,于2002年1月初交货,
而美方以我方延期交货为由提出索赔。问:
 1)我方可主张何种权利?为什么?
 2)美方的索赔要求是否合理?为什么?

Import & Export Practices
5. Sample force
majeure clause

“No Party shall be liable for any
failure to perform its obligations
where such failure is as a result of
Acts of God (including fire, flood,
earthquake, storm, hurricane or
other natural disaster), war,
invasion, act of foreign enemies,
hostilities (whether war is
declared or not),
Import & Export Practices
5. Sample force
majeure clause

civil war, rebellion, revolution,
insurrection, military or
usurped power or confiscation,
terrorist activities,
nationalization, government
sanction, blockage, embargo,
labor dispute, strike,
Import & Export Practices
5. Sample force
majeure clause

lockout or interruption or
failure of electricity or
telephone service, and no
other Party will have a right to
terminate this Agreement
under Clause XX (Termination)
in such circumstances.
Import & Export Practices
Import & Export Practices