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1、国际贸易实务双语教程 （第三版）(INTERNATIONAL Business Practice)清华大学出版社Main Points in Unit 12Section One Disputes and Claim（纠纷 和索赔）Section Two Force Majeure（不 可抗力）Section Three Arbitration（ 仲裁）Unit 12 Disputes, Claim and Arbitration The objective of this chapterDispute and Claim Force Majeure Arbitration Section O
2、ne Dispute and Claim 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. The contract is
3、discharged where the breach results in the innocent party treating it as rescinded and where it has the effect of depriving the party who has further undertakings still to perform of substantially the whole benefit which it was the intention of the parties as expressed in the contract as the conside
4、ration for performing those undertaking.1) Breach by the Seller 2) Breach by the Buyer 3)Both Parties are held responsible As to the case, please refer to your case bookDisputes In international trade, disputes often arise between the two parties when one party thinks that the other fails to carry o
5、ut the duties stipulated in the contract wholly or partially, which very likely leads to claim, arbitration and legal action. Claim Claim means that in international trade, one party breaks the contract and causes losses to the other party directly or indirectly, the party suffering the losses may a
6、sk for compensation for the losses. In some contract, the two parties often stipulate clauses on settlement of claim as well as inspection and claim clauses.Claim related to imports Claim Clauses1) Discrepancy and claim clause 2) Proofs 3) Period for claim4) Penalty Problems Should be Paid Attention
7、 to When a Buyer Files a Claim 1) Proofs for claiming 2) Claim amount3) Claim Period4) Sellers Responsibility for SettlementClauses in respect of claim in an import and export contract can be fixed as follows: (1) Discrepancy and claim clause:Claim amount: Period for claim (2) Proofs (3) Penalty: Se
8、ction Two Force Majeure Force majeure means that the frustration of the contract by the party in question results from natural or social forces including flood, earthquake, typhoon, fire, war and government decrees of prohibition beyond the control of man. This party shall be free from liability for
9、 performance, or be given an option of prolonging the performance of the contract owing to the above-mentioned event or series of events.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
10、General Way 2 Stipulate the Force Majeure Clause in a Way to List the Contents 3 Stipulate the Force Majeure Clause in a Way to ColligationSection Three Arbitration Dispute commonly to be settled by 3 ways:ConciliationArbitration Litigation The definition of arbitration Arbitration means that the tw
11、o 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. Normally a board of arbitration consists of three arbitrators. Firstly, the plaintiff and the defendan
12、t choose one arbitrator respectively. Then, the two arbitrators so chosen by the plaintiff and defendant choose a third arbitrator. Issues should be considered in the negotiation of arbitration : (1)Place of Arbitration (2) Arbitration Body (3) Applicable arbitration rules (4)Arbitral Award Examples
13、 of arbitration clauses (Read your text book) The differences between arbitration and legal actions can be generalized as followsIssues should be considered in the negotiation of arbitrationExamples of arbitration clauses Please read your text book意外事故无法预见 无法预防 无法避免 无法克服推迟履行合同 免除履行合同Summary不可抗力自然原因社会原因战争 罢工 禁运洪水 暴风 干旱 地震一般的贸易商业风险不属于不可抗力，如汇率 波动，商品价格升降ExercisePlease finish the exercise in the text bookCase Study: Please read your case book
