《国际贸易实务(英文版)(第二版)ppt周瑞琪9.Inspection, claim, force majeure and arbitration.ppt》由会员分享，可在线阅读，更多相关《国际贸易实务(英文版)(第二版)ppt周瑞琪9.Inspection, claim, force majeure and arbitration.ppt（35页珍藏版）》请在三一文库上搜索。
1、Chapter Nine,Inspection, Claim, Force Majeure and Arbitration,SEIB of GDUFS,2,Learning objectives,After reading this chapter, you should be able to explain ways to stipulate the place and time of inspection within the contract understand the conditions for breach of contract and settlement of claims
2、 describe ways of stipulating claim clauses in a sales contract be aware of the consequences of force majeure events explain ways to stipulate force majeure clauses in a sales contract realize the importance of arbitration in the settlement of disputes and claims be aware of the issues to be conside
3、red in the negotiation of arbitration describe the ways of stipulating an arbitration clause in a sales contract,SEIB of GDUFS,3,9.1 Commodity Inspection,Commodity inspection is the inspection conducted by an authorized third party to testify whether the quality, quantity, weight, package, etc. are
4、the same as those specified in the contract.,SEIB of GDUFS,4,9.1.1 Time and place of inspection,Inspection at the factory or at the port of shipment (also shipping quality and weight) The goods are inspected at the factory or at the port of shipment Inspection results considered final for the delive
5、ry of the goods by the seller Buyer can re-inspect the goods but the result will not serve as the basis for compensation More favorable to the seller,SEIB of GDUFS,5,9.1.1 Time and place of inspection,Inspection at the port of destination (also landed quality and weight) The goods are inspected at t
6、he port of destination Inspection results considered final for the delivery of the goods by the seller Buyer can claim for compensation in the case of discrepancies More favorable to the buyer,SEIB of GDUFS,6,9.1.1 Time and place of inspection,Inspection at the port of shipment and re-inspection at
7、the port of destination The goods are inspected at the port of destination and re-inspected by the buyer at the port of destination Inspection results issued at the port of shipment are used as one of the documents for the seller to settle payment Inspection results issued at the port of destination
8、 serve as the basis for the buyer to claim for compensation in the case of discrepancies Favorable to both the seller and the buyer,SEIB of GDUFS,7,9.1.2 Inspection Bodies,Types of inspection body Governmental inspection bodies Owned and supervised by governments Specialize in inspection of particul
9、ar commodities or those subject to mandatory inspection eg. The Food and Drugs Administration (FDA) in USA, The State Administration for Commodity Inspection (SACI) in China Non-governmental inspection bodies Privately owned Enjoy the same legal status Eg. Societe Generable De Surveillance S.A. (SGS
10、) in Swiss, Lloyds Surveyors in Britain, Underwriters Laboratories (UL) in USA.,SEIB of GDUFS,8,9.1.2 Inspection Bodies,Tasks of the inspection body To inspect goods for import and export Statutory inspection: for mandatory inspection Non-statutory inspection: made on a random basis To exercise supe
11、rvision and control over the inspection To accept the entrustment for surveying services and issue certificates of survey,SEIB of GDUFS,9,9.1.3 Inspection Standard,Standards Mandatory inspection: subject to the standards as specified in the Law and the Regulations For others, subject to the standard
12、s agreed upon in the trade contracts If there is contradiction between the standards in the Law and the Regulations and those in the contracts, subject to the higher one. If the standards are not specified in the Law and the Regulations or in the contract, subject to the standards of the manufacturi
13、ng country, or relevant international standards or the standards designated by the state inspection agency.,SEIB of GDUFS,10,9.1.4 Inspection Certificate,Inspection Certificate of Quality Inspection Certificate of Weight or Quantity Inspection Certificate of Value Inspection Certificate of Origin Sa
14、nitary Inspection Certificate Veterinary Inspection Certificate Disinfection Inspection Certificate Inspection Certificate on Damaged Cargo,SEIB of GDUFS,11,9.1.5 Inspection clause,The inspection clause usually contains stipulations on the inspection right the time and place of inspection or re-insp
15、ection the inspection body the inspection items and the inspection certificates.,SEIB of GDUFS,12,9.1.5 Inspection clause,Example,SEIB of GDUFS,13,9.2 Disputes and Claims,9.2.1 Disputes Main reasons for disputes breach of contract by the seller fails to deliver the goods fails to present required do
16、cuments breach of contract by the buyer fails to open L/C fails to accept the goods fails to dispatch the vessel (FOB) breach of contract by both parties misunderstands contract stipulations,SEIB of GDUFS,14,9.2.2 Claims,Claim: demand made by one party to another for a certain amount of compensation
17、 on account of a loss sustained through its negligence Types of claim claim regarding selling and buying claim regarding transportation claim concerning insurance,SEIB of GDUFS,15,9.2.3 Claim clause,Discrepancy and Claim Clause (for most transactions) Main information Relevant stipulations or proofs
18、 Relevant inspection authoritative body Period for lodging claims Ways to be settled making a refund compensating for direct losses or expenses selling the goods at lower price replacing the defective goods,SEIB of GDUFS,16,9.2.3 Claim clause,Example,SEIB of GDUFS,17,9.2.3 Claim clause,Penalty Claus
19、e (for transactions in large quantity or with large mechanical equipment),SEIB of GDUFS,18,9.3 Force Majeure,9.3.1 Force Majeure Clause Scope of Force Majeure Events Stipulation in a general way With the wording “force majeure events” only Not specific, easily leading to different interpretation,SEI
20、B of GDUFS,19,9.2.3 Claim clause,Stipulation in a specific way List all possible force majeure events in detail But may leave out other details,SEIB of GDUFS,20,9.3.1 Scope of Force Majeure Events,Stipulation in a synthesized way List some of the possible force majeure events in detail Add such word
21、ing as “or other cause of Force Majeure” in order not to miss the other possible causes,SEIB of GDUFS,21,9.3.1 Force Majeure Clause,Notification: Notify the buyer right after the accidents the following the force majeure event its effect on their ability of performing the contract Otherwise, the sel
22、ler will be held responsible for the loss or damage. Issuance of the certificates An effective certificate concerning the actual occurrence of the force majeure event is required; otherwise The seller will still be held responsible for the loss or damage.,SEIB of GDUFS,22,9.3.2 Consequences of Force
23、 Majeure Events,Postponement of the contract When the performance of the contract is delayed temporarily Contract shall be resumed after the force majeure event Termination of the contract When the performance of contract is impossible one of the party who suffers the force majeure event may ask for
24、 the termination of the contract,SEIB of GDUFS,23,9.4 Arbitration,9.4.1 Methods of dispute settlement negotiation mediation arbitration litigation,Most favorable,Least favorable,SEIB of GDUFS,24,Difference between arbitration and mediation Arbitration Involving an impartial third party Like an less
25、formal court, the arbitrator hears evidence and makes a decision The decision is final mediation Involving an impartial third party The mediator gives suggestions to the solution of disputes, but They do not reach a solution unless all sides agree.,9.4.2 Differences among ways of dispute settlements
26、,SEIB of GDUFS,25,Difference between arbitration and litigation the way to submit arbitration or litigation arbitration: submission to arbitration made on the agreement of both parties in advance litigation: submission to litigation made unilaterally by one of the parties the appointment of arbitrat
27、or or judge arbitration: appointed by the parties themselves and the third appointed by the arbitration institution litigation: appointed by the government,9.4.2 Differences among ways of dispute settlements,SEIB of GDUFS,26,Difference between arbitration and litigation the effectiveness of an award
28、 or verdict arbitration: award is final and binding on both parties with no right given to revision before a law court litigation: verdict is not final, ie. If one party refuses, he can retain the right to appeal to a higher court Arbitration is simpler, less costly and time-consuming and more flexi
29、ble, therefore is more favorable in dispute settlement.,9.4.2 Differences among ways of dispute settlements,SEIB of GDUFS,27,Applying for arbitration Application shall be made in written form the name address of the claimant and the claimee the arbitration agreement the facts of the disputes the cla
30、imants claim and the facts and evidence of the claim Application shall be submitted to the Secretariat of the Arbitration Commission The arbitration fee shall be paid in advance to the Arbitration Commission,9.4.3 Arbitration procedure,SEIB of GDUFS,28,Forming arbitration tribunal sole-arbitrator tr
31、ibunal only one arbitrator involved Both parties jointly appoint or jointly authorize the chairman of the arbitration body to appoint. collegiate tribunal three arbitrators involved The claimant and claimee each appoint an arbitrators The third one either be jointly appointed by both parties or appo
32、inted by the arbitration body.,9.4.3 Arbitration procedure,SEIB of GDUFS,29,Hearing an arbitration case oral hearing A date for oral hearing shall be fixed in advance Communicate to the parties concerned 30 (in foreign-related cases) or 15 days (in domestic cases) before the date for oral hearing th
33、e omission of an oral hearing Omission of an oral hearing shall be made at the request of the parties or with the consent of the parties; and be approved by the arbitration tribunal. If the oral hearing is omitted, an award shall be made based on the documents only.,9.4.3 Arbitration procedure,SEIB
34、of GDUFS,30,Issuing an award Time for the issuance for arbitration without oral hearing: within 9 months from the date of the formation of arbitration tribunal for arbitration based on oral hearing: within 30 days from the date of the oral hearing The date of issuance is the date on which the award
35、becomes effective. The arbitration award is final and binding upon both parties.,9.4.3 Arbitration procedure,SEIB of GDUFS,31,Setting aside an award In case of inconformity in the statutory procedure in the award, for example no arbitration clause in the contract, or no subsequent written arbitratio
36、n agreement included, or the appointment of an arbitrator or the formation of an arbitration tribunal not in consistent with arbitration rules the party concerned can apply for setting aside the arbitral award.,9.4.3 Arbitration procedure,SEIB of GDUFS,32,Enforcing an award If an award is not execut
37、ed within time limit specified, it can be applied to the competent court for enforcement. In applying for enforcement, one party shall submit a written application for enforcement the arbitration agreement the original copy of arbitral award.,9.4.3 Arbitration procedure,SEIB of GDUFS,33,arbitration
38、fee paid in advance by the claimant when applying for arbitration actual arbitration cost cost related to making investigations or collecting evidence, engaging expert to make appraisal, etc. The arbitration tribunal shall decide: how much is the cost which party shall pay,9.4.4 Arbitration Costs,SE
39、IB of GDUFS,34,An arbitration clause shall be regarded as existing independently and separately from the other clauses of the contract. An arbitration agreement is part of the contract, but existing independently and separately from the other clauses of the contract. An arbitration clause or an arbitration agreement expresses the willingness of the parties to submit the disputes to arbitration. Content: place of arbitration ,arbitration body, applicable arbitration rules, arbitration ward, etc.,9.4.5 Arbitration Clause,SEIB of GDUFS,35,9.4.5 Arbitration Clause,