资源简介

(共45张PPT)
Chapter 12
Disputes Settlement
In this chapter, you will learn the following key points:
Breach of contract
Discrepancy and claim
Methods of disputes settlement
Force majeure
12.1 Breach of Contract
A seller may breach a contract when:
He fails to deliver the required commodities;
He fails to deliver commodities in accordance with shipment date specified in the contract;
He delivers the goods that does not conform to the contract or the L/C in terms of quality, specifications and package, etc;
The attached shipping documents are both incomplete and inadequate.
12.1 Breach of Contract
A buyer may breach a contract when:
He fails to open the relevant L/C within stipulated period under an L/C payment;
He refuses to accept the goods without proper reasons;
He fails to dispatch the vessel in accordance with the clauses written in the contract under FOB terms.
Both parties may breach a contract when:
Misunderstanding or misinterpretation of the contract with vague expressions can lead to trade disputes;
12.1 Breach of Contract
They both may breach the contract.
12.2 Discrepancy and Claim
1. Discrepancy and Claim Clause
In most trade contracts concerning the sale of general goods, it is only the Discrepancy and Claim Clause that is stipulated.
Example of Discrepancy and Claim Clause
Any claim by the buyer regarding the goods shipped shall be filed within 30 days after arrival of the goods at the port of destination specified in the relative B/L and supported by a survey report issued by a surveyor approved by the seller. Claims in respect of matter within responsibility of the insurance company, shipping company/other transportation organization will not be considered or entertained by the seller.
12.2 Discrepancy and Claim
2. Penalty clause
When trading large quantity of goods or large mechanical equipment is involved, a penalty clause will also be included in the contract.
Example of Penalty clause
Should the buyers for their own sake fail to open the letter of credit on time stipulated in the contract, the buyers shall pay a penalty to the sellers. The penalty shall be charged at the rate of 0.5% of the amount of the L/C for every ten days of delay in opening the L/C, however, the penalty shall not exceed 5% of the total valued of the L/C which the buyers should have opened. Any fractional days less than ten days shall be deemed to be ten days for the calculation of penalty. The penalty shall be the sole compensation for the damage caused by such delay.
12.2 Discrepancy and Claim
3. Notable points when negotiating claim clause
To specify the proofs that the claimant shall present when filling a claim;
To fix a reasonable period for claim. For machines, the period usually takes a little longer;
To specify the method of determining compensation amount. To decide correctly and reasonably the losses or damages incurred and implement a rational settlement to the claim;
To match the claim clause with other clauses, such as the inspection clause.
12.3 Methods of Disputes Settlement
1. Negotiation
The most direct and best method
Negotiation is an informal, infinitely flexible, cost-saving and voluntary process by which parties attempt to reach consensus through unstructured discussions without the assistance or intervention of a third party.
In the process of negotiation, the parties involved control the process and outcome.
12.3 Methods of Disputes Settlement
2. Mediation
It is similar in many respects to negotiation. Both are generally private, voluntary, and informal. The main objective in both is on problem-solving;the results lie in the hands of parties themselves
In mediation, however, a disinterest third party is chosen by agreement to facilitate discussions and hopefully help both parties reach a mutually agreeable compromise.
12.3 Methods of Disputes Settlement
3. Arbitration
It is a formal and organized process for dispute resolution that applies a substantive law selected by the parties while following procedures established by the parties or the arbitral institution.
Unlike mediation, where the third party is a facilitator, the arbitrator’s decision is the final and legally binding and ruling on the outcome of the dispute.
3. Arbitration
(1) Arbitration body in China
Internationally, the arbitration body is the International Court of Arbitration. In China, it is the China International Economic and Trade Arbitration Commission (CIETAC)
3. Arbitration
(2) Arbitration procedure
Applying for arbitration
Forming arbitration tribunal
Hearing an arbitration case
Issuing an award
Enforcing an award
3. Arbitration
(3) Arbitration clause
An eligible, effective, complete and accurate arbitration clause or arbitration agreement should have the following elements:
(1) Arbitration Bodies;
(2) Arbitration Place;
(3) Applicable Rules of Arbitration Procedures;
(4) Effect of Arbitral Award;
(5) Arbitration Fee.
3. Arbitration
Example of Arbitration Clause
All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of [insert state in which parties agree to arbitrate] or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award of arbitration may be confirmed in a court of competent jurisdiction.
12.3 Methods of Disputes Settlement
4. Litigation
Litigation may be employed as the last resort. Litigation is the “traditional” dispute resolution mechanism involving taking a dispute to court, where both parties present their case to a judge in an attempt to reach a resolution or settlement.
Compared to litigation, arbitration is simpler, less expensive, less time-consuming and more flexible in international trade process. Moreover, an arbitrator who is familiar with the technical or social setting of the dispute can be selected. Business secrets can be better protected and friendship and goodwill may be better maintained.
12.3 Methods of Disputes Settlement
Arbitration Litigation
Private/Public Private Public
Speed of Process short long
Voluntary Applied on the will of parties involved Plaintiff can take unilateral action against defendant
Costs Fee for arbitrator, attorneys Court costs, attorney fees; costly
Formality Less formal Formal
How Arbitrator/Judge Selected Parties select arbitrator Court appoints judge
Appeal Available Usually binding Appeal possible
Use of Attorneys At discretion of parties; limited role Extensive use of attorneys
Type of Proceeding Civil—private Civil and criminal
Evidence Allowed Limited evidences Rules of evidence allowed
12.3 Methods of Disputes Settlement
Summary of the four types of dispute resolution
Negotiation Mediation Arbitration Litigation
Self-Control High High Low Low
Cost Low Low High High
Formality Informal Informal Formal Formal
Time Short Short Long Long
Risk to Relationships Low Low High High
Success Win-Win/Win-Lose Win-Win Win-Lose Win-Lose
12.4 Force Majeure
“Force Majeure”, also known as “Greater Force”, refers to change occurrence, unavoidable risks which prevent the parties from fulfilling their duties and obligations under the project agreements.
12.4 Force Majeure
1. Features of a force majeure event
It happens after the contract is signed;
It is not resulted from the negligence or malfeasance of the parties involved;
Neither the buyer nor the seller can control the situation.
12.4 Force Majeure
2. Consequences of force majeure
Termination of contract
In cases of natural disasters or other events that have made it;
If it is impossible to fulfill the contract, the contract can be terminated.
Postponement of contract
In cases of 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 his contract obligations.
12.4 Force Majeure
3. Types of force majeure events
Natural events
These may include tsunamis, hurricanes, floods, plague, earthquakes, etc.. These are events which are not within the control of the host government.
Political and special events
These may include terrorism, riots or civil disturbances, wars, strikes, change of law or regulation, nuclear or chemical contamination, failure of public infrastructure, etc.. These risks are generally considered to be beyond the control of the parties involved.
12.4 Force Majeure
4. Example of Force Majeure
Any event or circumstance beyond control shall be regarded as Force Majeure but not restricted to fire, wind, flood, earthquake, explosion, rebellion, epidemic, quarantine and segregation. In case either party that encounters Force Majeure fails to fulfill the obligation under the contract, the other party should extend the performance time by period equal to the time that Fore Majeure will last.
If the Force Majeure last over 6 months, the two parties of the contract should settle the case of continuing the contract by friendly negotiation as soon as possible. Should the two parties fail to reach an agreement will be settled by arbitration according to Clause 12 of the contract thereof.
Case 1
Our company exported a batch of frozen food to a certain country. After the arrival of the goods, the buyer lodged a quality claim within the validity period of the claim stipulated in the contract, which amounted to several hundred thousand RMB.
The attached evidence by the buyer included :(1) the legal commodity inspection certificate, indicating that the goods had deteriorated. However, it did not specify the detailed batch number of the goods, nor the quantity or proportion of the goods that had deteriorated. (2) deterioration certificate issued by the official laboratory based on the inspection of the sample food delivered by a local food retail store.
our company replied carelessly without denying the deterioration problem, instead vaguely asking the other party to reduce the claim amount but failed. After one-year ineffective communication between each other, the other party sent representatives to Beijing for face-to-face negotiation and asserted that Arbitration will be the last resort if there is no alternative.
Question: Should we accept this claim What were the mistakes made by both parties How should we deal with this case in the spirit of seeking truth from facts and on the principles of fairness and rationality.
Analysis of case 1
We should accept the claim. There existed loopholes in dealing with the case by both sides. The commodity inspection certificate presented by the other party shall indicate the batch number and quantity of the deteriorated goods, and submitted the deteriorated samples; our company should conduct further investigation on the quality of the goods to determine the validity of the deterioration claim and urged the other party to present qualified inspection certificate. The inappropriate reply was another major mistake because requiring claim amount reduction was equivalent to recognition of defective pensation shall be made for the deteriorated goods.
案例 1
我向某国出口一批冷冻食品，到货后买方在合同规定的索赔有效期内向我提出品质索赔，索赔额达数10万人民币。买方附来的证件有：
(1）法定商品检验证，注明该商品有变质现象，但未注明货物的详细批号，也未注明变质货物的数量或比例。
（2）官方化验机构根据当地某食品零售商店送验食品而作出的变质证明书。我方未经详细研究就函复对方，既未否认品质变质问题，只是含糊其词地要求对方减少索赔金额，对方不应允，双方函件往来一年没有结果，对方遂派代表来京当面交涉，并称如得不到解决，将提交仲裁。对此索赔案我应不应受理？试问双方各有什么漏洞？我方应如何本着实事求是精神和公平合理原则来处理此案
分析：对此案，我方是应该受理的。但双方在处理该案时有一定的漏洞。对方的商检证书应该注明变质货物的批号和数量，并提交变质的样本；我方应该对货物的质量加以调查，确定是否有变质的事实，并敦促对方提交合格的检验证书，回函中的表达也不恰当，要求减少索赔金额等于承认自身的货物存在品质缺陷。我方调查后，如发现货物确有变质的可能，应当赔偿对方的损失.
Case 2
A certain company exported 1000 cases of food to Rotterdam on CIF terms with payment by L/C at sight. When the goods were shipped, the company collected the payment from the bank by virtue of the Clean on Board Bill of Lading and the insurance policies covering all risks and war risks. Upon arrival at the destination port, the importer re-examined the goods and found the following problems:
( 1 ) There are 10 batch numbers. 20 boxes were randomly checked, and 2 batch numbers involving 200 boxes were found to contain salmonella bacteria which failed to comply with the standards of importing country;
Analysis of case 2
(1)Claim against the seller for salmonella problems;
(2)Claim against the carrier because the Bill of Lading is qualified;
(3)Claim against the insurance company because the goods were in good physical condition thus exempting the responsibility of the carrier.
( 2 ) the consignee received 998 boxes with 2 boxes less.
( 3 ) 15 boxes of goods were in good physical condition while the total quantity of goods inside were 60 kilograms less.
Try to analyze the above situation, whom should the importer claim to respectively, and explain the reasons.
案例 2
某国公司以CIF鹿特丹出口食品1000箱，即期信用证付款，货物装运后，凭已装船清洁提单和已投保一切险及战争险的保险单，向银行收托货款，货到目的港后经进口人复验发现下列情况：（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箱内含沙门氏细菌超过进口国的标准；（2）收货人是实收998箱，短少2箱。（3）有15箱货物外表情况良好，但箱内货物共短少60公斤。试分析以上情况，进口人应分别向谁索赔，并说明理由。
分析：(1)含沙门氏细菌，找卖方索赔（质量问题）
(2)提单没有问题，因此是承运人的责任，向承运人索赔
(3)货物外表情况良好，所以免除了承运人的责任，所以应该找保险公司进行索赔。
Case 3
A Chinese company cooperated with a Singapore company and exported a batch of local specialties to Singapore on CIF terms. When signing the contract, our company already knew that the goods would be transferred to U.S once it arrived at Singapore. Later, buyers in Singapore lodged a claim against our company with an inspection certificate issued by the United States commodity inspection authorities.
Question: How should our company deal with the inspection certificate Why
Analysis: The inspection certificate is valid. Our company should carefully examine the authenticity, completeness and effectiveness of the claim evidence on the inspection certificate. Meanwhile, we should consult relevant domestic departments and find out the reasons for contract pensation shall be made if it is our responsibility and if not, we shall refuse the other party’s requirement.
案例 3
我国某公司与新加坡一家公司以CIF的条件出口新加坡一批土产品，订约时，我国公司已知道该批货物要转销美国。该货物到新加坡后，立即转运美国。其后新加坡的买主凭美国商检机构签发的在美国检验的证明书，向我提出索赔。问，我国公司应如何对待美国的检验证书 为什么？
分析：检验有效，我国公司应认真对待美国检验书上提出的索赔证据，要着重审查其是否真实，齐全，有效，并向国内有关部门和环节了解情况，查明违约的原因，和责任，如果责任在我方，应给予赔付，如果不是我方的责任，则予以回绝。
Case 4
A company in country W signed a food export contract with the merchants in country X. According to the requirements of the merchants in country X, the food was transported to a certain port before notifying the merchants in country Y.
When the goods arrived at the port of destination, the health and quarantine department of country Y conducted the sampling inspection on the food and found that the content of mould failed to comply with local standard. Therefore, the food was prohibited to sell in country Y and suggested on-the-spot destruction. Merchants in country Y gained approval from merchants in country X and destroyed the food right on the spot.
Later, merchants in country Y claimed against merchants in country X on the basis of certificates issued by health and quarantine departments in country Y and related documents. After settling the claim, the merchants in country X claimed against the company in country W on the basis of the claim issued by the merchants in country Y.
Question: How should the company in country W deal with this
Analysis of case 4
First of all, the inspection rights of goods should be clarified. If company in country W knew that the food would be transported to country Y, and country Y did have right to inspect, the company in country W should compensate, when the goods are found to be inconsistent with the requirements in country Y.
案例 4
W国公司与X国商人签定一份食品出口合同，并按X国商人要求将该批食品运至某港通知Y国商人。货到目的港后，经Y国卫生检疫部门抽样化验发现霉菌含量超过该国标准，决定禁止在Y国销售并建议就地销毁。Y国商人电告X国商人并经许可将货物就地销毁。嗣后，Y国商人凭Y国卫生检疫部门出具的证书及有关单据向X国商人提出索赔。X国商人理赔后，又凭Y国商人出具的索赔依据向W过公司索赔。对此，你认为W国公司应如何处理？
分析：首先要明确商品的检验权问题。如果Ｙ国有权检验，W公司知道该商品运往Ｙ国，商品在Ｙ国检验出不符合要求，Ｗ国应该理赔。
Case 5
A foreign trade company in country A imported 20,000 metric tons of ordinary bean cakes from company B overseas and delivery was arranged in August. However, in April, production areas for bean cakes were hit by flood, thus the bean cakes acquisition plan pany B requested to exempt it from the delivery responsibility based on the principles of force majeure.
Question: Is it a valid request and why？
Analysis: It depends on the actual situation. It is impossible to exempt the seller from the delivery responsibility when any force majeure event occurs. If company B is capable of performing its contractual obligations, the delivery time can be delayed; if it is determined through investigation that company B cannot perform its obligations due to force majeure, it’s delivery responsibility can be exempted.
案例 5
国A外贸公司向国外B公司进口普通豆饼2万公吨，8月份交货。在4月份，B商豆饼收购地发生洪灾，收购计划落空。B致电我A公司要求按不可抗力时间处理，免除其交货责任。问：这一要求 是否合理？为什么？
分析：看不可抗力事件的影响程度，并不是发生任何不可抗力事件时都可以让卖方免除交货责任的，所以，其合理性看具体情况而定。如果B公司有能力履行合同义务，则可以延迟交货时间，若经调查确定B公司因不可抗力事件不能履行义务，则免除其交货责任。
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