Текст книги "Внешнеторговый международный контракт: типовой образец, пример контракта, экономические и юридические аспекты"

Автор книги: Денис Шевчук

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Check Questions

Is the 1980 Vienna Convention imperative or dispositive in character?

The 1980 Vienna Convention. What is the sphere of its application?

How many countries have signed the 1980 Vienna Convention?

Does this Convention set any rules to govern the choice of law?

WORLD-WIDE CONTRACTUAL STANDARDS

INCOTERMS,THE ICC OFFICIAL RULES FOR THE INTERPRETATION OF TRADE TERMS

TERMS THE WORLD TRADES BY

In every international trade transaction certain questions must be answered:

Who will arrange and pay for the transfer of goods from the seller’s works/ factory/warehouse to the buyer’s premises?

Who will bear the risk if these operations cannot be carried out?Who will bear the risk of loss of or damage to the goods in transit?

The various national laws, of course, contain various solutions for each of these questions. However, one party to an international sales contract may hesitate to subject itself to the national laws and procedures of the other. This is why international commercial terms, or standardised trade terms, have been developed, notably by the International Chamber of Commerce (ICC) – the Incoterms.

With Incoterms, the ICC set out to overcome the problems of conflicting national laws and interpretations by establishing a standard set of trade terms and definitions that offer neutral rules and practices. They have been decided upon after thorough discussions between experts representing businessmen from all over the world.

The Incoterms were first published in 1936, since then they have been regularly updated to keep pace with the development of international trade. Amendments and additions were made in 1953, 1967, 1976, 1980, 1990 and presently in 2000.

In view of the changes made to Incoterms from time to time, it is important to ensure that where the parties intend to incorporate Incoterms into a contract of sale, an express reference be made to the current version of Incoterms. The absence of such reference may result in disputes as to whether the parties intended to incorporate as part of their contract that version or an earlier version.

The Incoterms become part of a sales contract if seller and buyer so agree by simple reference to one of the trade terms expressly stating that the contract should be interpreted according to a particular Incoterm, e. g. C.I.F. Incoterms 2000.

It should be noted that special provisions in individual contracts will override anything provided in Incoterms. Parties may adopt Incoterms as a general basis of a contract but may also specify variations or additions to fit a contract to a particular trade or to particular needs. In this context, it is important to bear in mind that Incoterms are premised on the seller’s minimum liability. In an individual contract, the buyer therefore may wish to increase the seller’s obligation.

It should also be kept in mind that reference to a particular Incoterm is not sufficient to determine the full legal relationship between parties to a contract of sale. Matters such as breach of contract and its consequences, as well as the difficult problem of ownership of goods, are outside the scope of the trade terms.

The scope of Incoterms is limited to matters relating to the rights and obligations of the parties to the contract of sale with respect to the delivery of goods sold. Their basic purpose is to explain how responsibility, cost and risk should be divided between the parties in connection with the delivery of goods from seller to buyer.

To establish this division, the point at which goods are considered delivered from seller to buyer under the respective terms must be indicated. Normally, at this point (the "critical point"), the obligation to arrange for further transport of goods and to assume further costs and risks is transferred from seller to buyer. Under some trade terms, the "critical points" for the transfer of costs and risks do not coincide.

There are two particular misconceptions about Incoterms:

they are frequently misunderstood as applying to a contract of carriage rather than to a contract of salethey are sometimes wrongly assumed to provide for all the obligations which parties may wish to include in a contract of sale.

These misconceptions are very common although the ICC has always stressed that Incoterms deal only with the relation between sellers and buyers under a contract of sale, and, moreover, only do so in some particular and very distinct respects.

Incoterms 2000

Incoterms 2000 bring the official ICC rules for the interpretation of the most commonly used trade terms in line with the current international trade practices:

recent spread of customs-free zonesincreased use of electronic communications in business transactionschanges in transport techniques.

In their 2000 revised version, Incoterms concentrate on the thirteen most important trade terms and offer a simpler and clearer presentation of them. The use of different expressions to convey the same meaning has been avoided. Moreover, whenever possible, the same expressions as appear in the 1980 Vienna Convention on Contracts for the International Sale of Goods have been used.

The following is the complete list of Incoterms 2000 in their abbreviated form, full form and in a Russian translation.

As is clearly seen from the list, the terms are grouped in four basically different categories:

• the «E» term whereby the seller simply makes the goods available to the buyer at the seller’s own premises. This term represents the minimum obligation for the seller (and the maximum obligation for the buyer).

• the «F» terms FCA, FAS, FOB whereby the seller is asked to deliver the goods to a carrier appointed by the buyer.

• the «C» terms CFR, CIF, CPT, CIP whereby the seller contracts for carriage without taking the risk of loss or damage to goods or additional costs due to events occurring after shipment and dispatch.

• the «D» terms DAF, DES, DEQ, DDU, DDP whereby the seller bears all costs and risks needed to bring goods to place of destination.

The respective obligations of parties under each term are grouped under ten headings. Each heading on the seller’s side has its equivalent on the buyer’s side.

At first glance, it would seem best that each of the contracting parties limit its obligation as much as possible. The seller would then try to negotiate an Ex Works contract while the buyer would try to persuade the seller to deliver goods duty paid to the buyer’s premises. In practice, however, the situation is not that simple. A seller or a buyer cannot easily make a better contract merely by shifting functions, costs and risks to a contracting party. The parties involved will probably be guided by the following criteria:

Market situation

In a highly competitive market, the seller may wish to offer prices to the buyer that are comparable to prices offered in the buyer’s domestic market. The seller would then undertake to deliver the goods using the DDP term. As a minimum the seller would be obliged to arrange and pay for transportation by using the CIF term. One should remember that additional costs and risks accepted by the seller are always reflected in the price.

Control of transport and insurance

In some instances an exporter of large and regular volumes of goods may be in a position to obtain better terms from carriers and insurers than the occasional importer. It may be comparatively simple to arrange the transport in the country of export and the risk of something going wrong will be minimal. In such cases there is really no reason why the seller should limit his obligations under an Ex Works or FOB agreement. He could just as well accept a further obligation to arrange and pay for the carriage and insurance on CIF terms.

Sellers and buyers are not always prepared to accept risk of loss and damage to goods, or the risk of cost increases or circumstances hindering transport, in a foreign country. Under normal conditions of trade between countries with well-organized container ports and comparatively peaceful labour conditions, the risk of political disturbances, congestion in the ports, strikes or interruptions of trade may be minimal. In such cases, the seller may be prepared to assume the risk during transport, and to choose a term in which his responsibilities extend to the arrival of goods at destination (Delivered Duty Paid).

Government involvement

Directly or indirectly, government authorities may guide or even instruct parties in their country to sell on CIF terms and to buy on FOB terms. There are several reasons for this:

• trade terms constitute an important tool for directing the flow of goods to national shipping lines or other national carriers. They can also be used to promote the domestic insurance market.

• saving foreign currency. A seller who has undertaken to pay for carriage and insurance will include these costs in his price, and thereby obtain more foreign currency. On the other hand, a buyer who has assumed these costs will pay less for the actual goods, and may sometimes be able to pay for transportation and insurance services in domestic currency.

Use of exception clauses

It must be remembered that trade terms extending the seller’s obligations to delivery in the buyer’s country will not only mean additional costs for the seller but also additional risks. The risk of loss of goods or damage is perhaps not primarily important, since it is normally covered by cargo insurance.

Risks of cost increases and hindrances of various types are much more serious. Unforeseen events – such as the imposition of duties, other government interventions, labour disturbances, war or warlike operations – may put a heavy burden on the seller.

To a certain extent such risks may be modified and divided between the parties under terms other than Incoterms. Depending upon their wording, these terms may provide more or less protection; such protection, however, is seldom complete.

In view of the importance of Incoterms for international trade, we quote here five most frequently used terms from the ICC Incoterms 2000 (ICC publication № 560): EXW, FOB, CIF, CIP, DDP. In the following, each of the five Incoterms is briefly described, highlighting the main obligations of seller and buyer. The sections "The seller’s obligations"/ "The buyer’s obligations" serve at the same time as a checklist.

EXW, EX WORKS (…named place)

"Ex works" means that the seller delivers when he places the goods at the disposal of the buyer at the seller’s premises or another named place (i.e. works, factory, warehouse, etc.) not cleared for export and not loaded on any collecting vehicle.

This term thus represents the minimum obligation for the seller, and the buyer has to bear all costs and risks involved in taking the goods from the seller’s premises.

However, if the parties wish the seller to be responsible for the loading of the goods on departure and to bear the risks and all the costs of such loading, this should be made clear by adding explicit wording to this effect in the contract of sale. This term should not be used when the buyer cannot carry out the export formalities directly or indirectly. In such circumstances, the FCA term should be used, provided the seller agrees that he will load at his cost and risk.

The Seller’s obligations

A1 Provision of goods in conformity with the contract

The seller must provide the goods and the commercial invoice or its equivalent electronic message, in conformity with the contract of sale and any other evidence of conformity which may be required by the contract.

A2 Licences,authorizations and formalities

The seller must render the buyer, at the latter’s request, risk and expense, every assistance in obtaining, where applicable, any export licence or other official authorization necessary for the export of the goods.

A3 Contracts of carriage and insurance

a) Contract of carriage

No obligation.

b) Contract of insurance

No obligation.

A4 Delivery

The seller must place the goods at the disposal of the buyer at the named place of delivery, not loaded on any collecting vehicle, on the date or within the period agreed or, if no such time is agreed, at the usual time for delivery of such goods. If no specific point has been agreed within the named place, and if there are several points available, the seller may select the point at the place of delivery which best suits his purpose.

A5 Transfer of risks

The seller must, subject to the provisions of B5, bear all risks of loss of or damage to the goods until such time as they have been delivered in accordance with A4.

A6 Division of costs

The seller must, subject to the provisions of B6, pay all costs relating to the goods until such time as they have been delivered in accordance with A4.

A7 Notice to the buyer

The seller must give the buyer sufficient notice as to when and where the goods will be placed at his disposal.

A8 Proof of delivery,transport document or equivalent electronic message

No obligation.

A9 Checking – packaging – marking

The seller must pay the costs of those checking operations (such as checking quality, measuring, weighing, counting) which are necessary for the purpose of placing the goods at the buyer’s disposal.

The seller must provide at his own expense packaging (unless it is usual for the particular trade to make the goods of the contract description available unpacked) which is required for the transport of the goods, to the extent that the circumstances relating to the transport (for example modalities, destination) are made known to the seller before the contract of sale is concluded. Packaging is to be marked appropriately.

A10 Other obligations

The seller must render the buyer at the latter’s request, risk and expense, every assistance in obtaining any documents or equivalent electronic messages issued or transmitted in the country of delivery and/or of origin which the buyer may require for the export and/or import of the goods and, where necessary, for their transit through any country.

The seller must provide the buyer, upon request, with the necessary information for procuring insurance.

The Buyer’s obligations

B1 Payment of the price

The buyer must pay the price as provided in the contract of sale.

B2 Licences,authorizations and formalities

The buyer must obtain at his own risk and expense any export and import licence or other official authorization and carry out, where applicable, all customs formalities for the export of the goods.

B3 Contracts of carriage and insurance

a) Contract of carriage

No obligation.

b) Contract of insurance

No obligation.

B4 Taking delivery

The buyer must take delivery of the goods when they have been delivered in accordance with A4 and A7/B7.

B5 Transfer of risks

The buyer must bear all risks of loss of or damage to the goods

• from the time they have been delivered in accordance with A4; and

• from the agreed date or the expiry date of any period fixed for taking delivery which arise because he fails to give notice in accordance with B7, provided, however, that the goods have been duly appropriated to the contract, that is to say clearly set aside or otherwise identified as the contract goods.

B6 Division of costs

The buyer must pay

• all costs relating to the goods from the time they have been delivered in accordance with A4; and

• any additional costs incurred by failing either to take delivery of the goods when they have been placed at his disposal, or to give appropriate notice in accordance with B7 provided, however, that the goods have been duly appropriated to the contract, that is to say, clearly set aside or otherwise identified as the contract goods; and

• where applicable, all duties, taxes and other charges as well as the costs of carrying out customs formalities payable upon export.

The buyer must reimburse all costs and charges incurred by the seller in rendering assistance in accordance with A2.

B7 Notice to the seller

The buyer must, whenever he is entitled to determine the time within an agreed period and/or the place of taking delivery, give the seller sufficient notice thereof.

B8 Proof of delivery,transport document or equivalent electronic message

The buyer must provide the seller with appropriate evidence of having taken delivery.

B9 Inspection of goods

The buyer must pay the costs of any pre-shipment inspection, including inspection mandated by the authorities of the country of export.

B10 Other obligations

The buyer must pay all costs and charges incurred in obtaining the documents or equivalent electronic messages mentioned in A10 and reimburse those incurred by the seller in rendering his assistance in accordance therewith.

FOB, FREE ON BOARD (…named port of shipment)

"Free on Board" means that the seller delivers when the goods pass the ship’s rail at the named port of shipment. This means that the buyer has to bear all costs and risks of loss of or damage to the goods from that point. The FOB term requires the seller to clear the goods for export. This term can be used only for sea or inland waterway transport. If the parties do not intend to deliver the goods across the ship’s rail, the FCA term should be used.

The Seller’s obligations

A1 Provision of goods in conformity with the contract

The seller must provide the goods and the commercial invoice, or its equivalent electronic message, in conformity with the contract of sale and any other evidence of conformity which may be required by the contract.

A2 Licences,authorizations and formalities

The seller must obtain at his own risk and expense any export licence or other official authorization and carry out, where applicable, all customs formalities necessary for the export of the goods.

A3 Contracts of carriage and insurance

a) Contract of carriage

No obligation.

b) Contract of insurance

No obligation.

A4 Delivery

The seller must deliver the goods on the date or within the agreed period at the named port of shipment and in the manner customary at the port on board the vessel nominated by the buyer.

A5 Transfer of risks

The seller must, subject to the provisions of B5, bear all risks of loss of or damage to the goods until such time as they have passed the ship’s rail at the named port of shipment.

A6 Division of costs

The seller must, subject to the provisions of B6, pay

• all costs relating to the goods until such time as they have passed the ship’s rail at the named port of shipment; and

• where applicable, the costs of customs formalities necessary for export as well as all duties, taxes and other charges payable upon export.

A7 Notice to the buyer

The seller must give the buyer sufficient notice that the goods have been delivered in accordance with A4.

A8 Proof of delivery,transport document or equivalent electronic message

The seller must provide the buyer at the seller’s expense with the usual proof of delivery in accordance with A4.

Unless the document referred to in the preceding paragraph is the transport document, the seller must render the buyer, at the latter’s request, risk and expense, every assistance in obtaining a transport document for the contract of carriage (for example, a negotiable bill of lading, a non-negotiable sea waybill, an inland waterway document, or a multimodal transport document).

Where the seller and the buyer have agreed to communicate electronically, the document referred to in the preceding paragraph may be replaced by an equivalent electronic data interchange (EDI) message.

A9 Checking – packaging – marking

The seller must pay the costs of those checking operations (such as checking quality, measuring, weighing, counting) which are necessary for the purpose of delivering the goods in accordance with A4.

The seller must provide at his own expense packaging (unless it is usual for the particular trade to ship the goods of the contract description unpacked) which is required for the transport of the goods, to the extent that the circumstances relating to the transport (for example modalities, destination) are made known to the seller before the contract of sale is concluded. Packaging is to be marked appropriately.

A10 Other obligations

The seller must render the buyer at the latter’s request, risk and expense, every assistance in obtaining any documents or equivalent electronic messages (other than those mentioned in A8) issued or transmitted in the country of shipment and/or of origin which the buyer may require for the import of the goods and, where necessary, for their transit through any country.

The seller must provide the buyer, upon request, with the necessary information for procuring insurance.

The Buyer’s obligations

B1 Payment of the price

The buyer must pay the price as provided in the contract of sale.

B2 Licences,authorizations and formalities

The buyer must obtain at his own risk and expense any import licence or other official authorization and carry out, where applicable, all customs formalities for the import of the goods and, where necessary, for their transit through any country.

B3 Contracts of carriage and insurance

a) Contract of carriage

The buyer must contract at his own expense for the carriage of the goods from the named port of shipment.

b) Contract of insurance

No obligation.

B4 Taking delivery

The buyer must take delivery of the goods when they have been delivered in accordance with A4.

B5 Transfer of risks

The buyer must bear all risks of loss of or damage to the goods

• from the time they have passed the ship’s rail at the named port of shipment; and

• from the agreed date or the expiry date of the agreed period for delivery which arise because he fails to give notice in accordance with B7, or because the vessel nominated by him fails to arrive on time, or is unable to take the goods, or closes for cargo earlier than the time notified in accordance with B7, provided, however, that the goods have been duly appropriated to the contract, that is to say, clearly set aside or otherwise identified as the contract goods.

B6 Division of costs

The buyer must pay

• all costs relating to the goods from the time they have passed the ship’s rail at the named port of shipment; and

• any additional costs incurred, either because the vessel nominated by him fails to arrive on time, or is unable to take the goods, or closes for cargo earlier than the time notified in accordance with B7, or because the buyer has failed to give appropriate notice in accordance with B7, provided, however, that the goods have been duly appropriated to the contract, that is to say, clearly set aside or otherwise identified as the contract goods; and

• where applicable, all duties, taxes and other charges as well as the costs of carrying out customs formalities payable upon import of the goods and for their transit through any country.

B7 Notice to the seller

The buyer must give the seller sufficient notice of the vessel name, loading point and required delivery time.

B8 Proof of delivery,transport document or equivalent electronic message

The buyer must accept the proof of delivery in accordance with A8.

B9 Inspection of goods

The buyer must pay the costs of any pre-shipment inspection except when such inspection is mandated by the authorities of the country of export.

B10 Other obligations

The buyer must pay all costs and charges incurred in obtaining the documents or equivalent electronic messages mentioned in A10 and reimburse those incurred by the seller in rendering his assistance in accordance therewith.

CIF, COST INSURANCE AND FREIGHT (…named port of destination)

"Cost, Insurance and Freight" means that the seller delivers when the goods pass the ship’s rail in the port of shipment.

The seller must pay the costs and freight necessary to bring the goods to the named port of destination BUT the risk of loss of or damage to the goods, as well as any additional costs due to events occurring after the time of delivery, are transferred from the seller to the buyer. However, in CIF the seller also has to procure marine insurance against the buyer’s risk of loss of or damage to the goods during the carriage.

Consequently, the seller contracts for insurance and pays the insurance premium. The buyer should note that under the CIF term the seller is required to obtain insurance only on minimum cover. Should the buyer wish to have the protection of greater cover, he would either need to agree as much expressly with the seller or to make his own extra insurance arrangements.

The CIF term requires the seller to clear the goods for export.

This term can be used only for sea and inland waterway transport. If the parties do not intend to deliver the goods across the ship’s rail, the CIP term should be used.

The Seller’s obligations

A1 Provision of goods in conformity with the contract

The seller must provide the goods and the commercial invoice, or its equivalent electronic message, in conformity with the contract of sale and any other evidence of conformity which may be required by the contract.

A2 Licences,authorizations and formalities

The seller must obtain at his own risk and expense any export licence or other official authorization and carry out, where applicable, all customs formalities necessary for the export of the goods.

A3 Contracts of carriage and insurance

a) Contract of carriage

The seller must contract on usual terms at his own expense for the carriage of the goods to the named port of destination by the usual route in a seagoing vessel (or inland waterway vessel as the case may be) of the type normally used for the transport of goods of the contract description.

b) Contract of insurance

The seller must obtain at his own expense cargo insurance as agreed in the contract, such that the buyer, or any other person having an insurable interest in the goods, shall be entitled to claim directly from the insurer and provide the buyer with the insurance policy or other evidence of insurance cover.

The insurance shall be contracted with underwriters or an insurance company of good repute and, failing express agreement to the contrary, be in accordance with minimum cover of the Institute Cargo Clauses (Institute of London Underwriters) or any similar set of clauses. The duration of insurance cover shall be in accordance with B5 and B4. When required by the buyer, the seller shall provide at the buyer’s expense war, strikes, riots and civil commotion risk insurances if procurable. The minimum insurance shall cover the price provided in the contract plus ten per cent (i. e. 110 %) and shall be provided in the currency of the contract.

A4 Delivery

The seller must deliver the goods on board the vessel at the port of shipment on the date or within the agreed period.

A5 Transfer of risks

The seller must, subject to the provisions of B5, bear all risks of loss of or damage to the goods until such time as they have passed the ship’s rail at the port of shipment.

A6 Division of costs

The seller must, subject to the provisions of B6, pay

• all costs relating to the goods until such time as they have been delivered in accordance with A4; and

• the freight and all other costs resulting from A3 a), including the costs of loading the goods on board; and

• the costs of insurance resulting from A3 b); and

• any charges for unloading at the agreed port of discharge which were for the seller’s account under the contract of carriage; and

• where applicable, the costs of customs formalities necessary for export as well as all duties, taxes and other charges payable upon export, and for their transit through any country if they were for the seller’s account under the contract of carriage.

A7 Notice to the buyer

The seller must give the buyer sufficient notice that the goods have been delivered in accordance with A4 as well as any other notice required in order to allow the buyer to take measures which are normally necessary to enable him to take the goods.

A8 Proof of delivery,transport document or equivalent electronic message

The seller must, at his own expense, provide the buyer without delay with the usual transport document for the agreed port of destination.

This document (for example a negotiable bill of lading, a non-negotiable sea waybill or an inland waterway document) must cover the contract goods, be dated within the period agreed for shipment, enable the buyer to claim the goods from the carrier at the port of destination and, unless otherwise agreed, enable the buyer to sell the goods in transit by the transfer of the document to a subsequent buyer (the negotiable bill of lading) or by notification to the carrier.

When such a transport document is issued in several originals, a full set of originals must be presented to the buyer.

Where the seller and the buyer have agreed to communicate electronically, the document referred to in the preceding paragraphs may be replaced by an equivalent electronic data interchange (EDI) message.

A9 Checking – packaging – marking

The seller must pay the costs of those checking operations (such as checking quality, measuring, weighing, counting) which are necessary for the purpose of delivering the goods in accordance with A4.

The seller must provide at his own expense packaging (unless it is usual for the particular trade to ship the goods of the contract description unpacked) which is required for the transport of the goods arranged by him. Packaging is to be marked appropriately.

A10 Other obligations

The seller must render the buyer at the latter’s request, risk and expense, every assistance in obtaining any documents or equivalent electronic messages (other than those mentioned in A8) issued or transmitted in the country of shipment and/or of origin which the buyer may require for the import of the goods and, where necessary, for their transit through any country.

The seller must provide the buyer, upon request, with the necessary information for procuring any additional insurance.

The Buyer’s obligations

B1 Payment of the price

The buyer must pay the price as provided in the contract of sale.

B2 Licences,authorizations and formalities