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1、2018/10/15,1,2-6 国际货物买卖合同的实务条款,2018/10/15,2,本周讲课内容 2-6.6 海上货物运输保险条款 &国际贸易保险法 2-6.7 支付条款 & 国际贸易支付方式 2-6.8 商检条款& 进出口商品检验检疫管理制度 2-6.9 不可抗力条款 2-6.10 仲裁条款& 国际商事仲裁协议 2-7 国际销售示范合同 2-8 国际货物买卖的其他方式和比较,2018/10/15,3,2-6.8 商检条款& 进出口商品检验检疫管理制度,The typical clauses for inspection clause Example 1 “It is mutually a
2、greed that the Certificate of Quality and Weight (quantity) issued by XX at the port of shipment shall be part of shipments to be presented for negotiation under the relevant L/C.,2018/10/15,4,The Buyer shall have the right to re-inspect the quality and weight (quantity) of the cargo at the destinat
3、ion. The re-inspection fee shall be borne by the buyer. Should the quality and weight (quantity) be found not in conformity with the contract, the Buyer is entitled to lodge with the Seller a claim, which ，however， should be supported by survey report issued by a authentic surveyor recognized by the
4、 both parties. The claim, if any, shall be lodged within XX days after arrival of the goods at the port of destination. ”,2018/10/15,5,Comment on this clause This clause covers the necessary elements for inspection: -Well balanced allocation of rights and duties As the seller has the right to presen
5、t the certificate for negotiation while the buyer has the right to re-inspect -The re-inspection result is subject to survey report issued by a recognized surveyor approved by the seller ; -it includes who , when and where to inspect ; and the inspect fees;,2018/10/15,6,However, it still leaves some
6、 other issues in controversy-the standard of inspection ？; -The method of inspection？; -The resolution to the discrepancy of quality and quantity between the shipping documents issued by the seller and surveyor report ?; - the resolution to the situation if both parties can not consensus on the surv
7、eyor ?.,2018/10/15,7,The typical clauses for inspection clause Example 2 Discrepancy and claim clause “It is mutually agreed that the Certificate of Quality and Quantity/Weight issued by the Manufacturer ( or surveyor) shall be part of documents for payment under the relevant L/C .,2018/10/15,8,In c
8、ase the quality or quantity or weight of goods be found not in conformity with those stipulated in this contract after re-inspection by ( XX organization) within XX days after discharge of the good at the port if destination, the Buyers shall return the goods to or lodge claim the Sellers for compen
9、sation of losses upon the strength of Inspection Certificate issued by the said (organization), with the exception of those claims for which the insurers or the carriers are liable . All expenses (including inspection fees )and losses arising from the return of the goods or claims shall be borne by
10、the Sellers. In such case, the Buyers may ,if so requested ,send a sample of goods in question to the Sellers, provided that the sampling is feasible”.,2018/10/15,9,Legal concern over the clause What is the relationship between time limit say,30 days at Discrepancy and claim clause and two years in
11、civil procedure law ?,2018/10/15,10,2-6.9 不可抗力条款 FORCE MAJEURE,Typical wording of this clause:“If the shipment of contracted goods is prevented or delayed in whole or part by reasons of war, earthquake, flood, fire, storm, heavy snow or other causes of force majeure, the seller shall not be liable f
12、or non shipment of late shipment of the goods of this contract .,2018/10/15,11,However, the seller shall notify the buyer by tele-transmission and furnish the latter within XX days by registered airmail with a certificate issued by XX ( China Council for the Promotion of International Trade or China
13、 Chamber of International Commerce ) attesting such event .”Legal concern over the clause What is the relationship between the event in force majeure clause and frustration events (合同落空) ?,2018/10/15,12,2-6.10 仲裁条款& 国际商事仲裁协议,Typical clause of arbitration“All disputes arising out of performance of ,
14、or relating to this contract shall be settled amicably through friendly negotiation. In case no settlement can be reached the case shall be submitted to China International Economic and Trade Arbitration Commission ) for arbitration with XX rules in effect at the time of applying. The arbitral award
15、 is final and binding upon both parties.”,2018/10/15,13,The legal elements should be involved in arbitration,matters can be arbitrated (arbitratability) - All disputes arising out of performance of , or relating to this contract Labor dispute? Marriage matters?-jurisdiction of arbitral tribunal -the
16、 venue where the arbitration proceeds,2018/10/15,14,procedural rules of arbitrationgoverning law or proper law (substantive law?)validity of arbitral awardenforceability of arbitral awardreconciliation involved before and within arbitration process,2018/10/15,15,国际货物买卖合同条款及其法律要点归纳,1. Whereas term ：- part of contract? 2. Quality term：- sample & description- customary standard of quality (FAQ) - marketable quality 3. Quantity term：- determinable quantity- customary standard (UCP 600) 4. Price term： trade terms catering to modes of containerized and non containerized transportation,
