浏览数量： 1 作者： 钱颜 发布时间： 2019-12-31 来源： 中国贸易报
"In the international sale of goods, because the buyers and sellers belong to different countries, the parties will usually stipulate in the sale and purchase contract which laws are governed by the contract and when disputes arise, which dispute resolution channels should the two parties resort to." At the forum of Chinese enterprises going abroad, Li Chengrong, a non-equity partner of Zhonglun Law Firm, introduced that, regarding the law of jurisdiction, both parties should clearly state the law applicable to the sales contract. At the same time, each party must ensure that the chosen governing law does not conflict with the implied laws (including international conventions) applicable to one or more parties to the contract. For example, if the parties expressly choose to apply English law, and the contract implicitly applies the United Nations Convention on Contracts for the International Sale of Goods, then the application of the convention is usually explicitly excluded through the terms of the contract to avoid the rights and obligations of the buyer and seller and the risks under the two. Conflicts caused by different regulations.
In addition to fully understanding the rights and obligations that should be fulfilled under the sales contract, the enterprise should also try to understand as much as possible the implied provisions of the law governing the rights and obligations of the buyer and the seller. For example, Li Chengrong said that if the contract chooses to apply English law, the two parties should understand the most important statutory law under English law, namely the provisions on the quality and quantity of goods in the Goods Sale and Purchase Act 1979, in order to better fulfill their obligations And exercise rights to avoid corresponding risks of default. Regarding the choice of dispute resolution methods, if both parties agree to choose arbitration to resolve the dispute, it should be clearly provided to a specific arbitral tribunal. The mere provision that "dispute to arbitration" may be deemed invalid.
As the contract for the sale of goods requires detailed stipulations on the rights and obligations of the buyer and the seller, it is inevitable that the parties will omit the terms of the contract when they make the contract themselves. Therefore, in many transactions, the two parties will choose to apply some authoritative standard contract templates. Li Chengrong emphasized that it should be noted that buyers and sellers should carefully review the terms in such contract templates and make necessary changes to the terms as agreed between the parties. At the same time, it should be noted that the terms in such contract templates are blank or optional. Both parties should fill in or make a choice when deciding to apply the contract template, otherwise the above terms may not be effective or enforced.
Letter of credit is one of the most common payment methods in the international sale of goods. Usually, the buyer entrusts the bank to open a letter of credit with the beneficiary as the seller. After the seller provides the bank with the documentary documents required in the letter of credit, the bank can redeem it after checking the surface consistency. Li Chengrong pointed out that in this process, the buyer's obligation is to entrust the bank to open a letter of credit. The letter of credit must comply with the provisions of the sales contract. No additional obligations can be set for the seller. Documents, etc. Otherwise, it may be deemed a breach of contract. The seller needs to submit the documentary documents required in the L / C to the bank after completing the obligation to deliver the shipment. If the documents do not meet the requirements, the bank may refuse to pay.
"It is worth noting that a letter of credit is a self-contained document, that is, once a letter of credit is opened, it is independent of the contract of sale. Except for limited exceptions such as fraud, any party's breach of contract cannot be a reason for the bank to refuse to pay. It is necessary to check that the document document is consistent with the letter of credit on the surface and can be redeemed. Therefore, when the documents are consistent, even if the seller defaults, the bank cannot refuse to pay, and the buyer cannot refuse to pay the bank. The buyer can only pass the dispute agreed in the contract. The solution is to seek relief. "Li Chengrong said.
In the international sale of goods, breach of contract is also a frequent part of disputes. A more common type of breach of contract is that the goods provided by the seller do not meet the contract requirements and are held liable by the buyer. Li Chengrong reminded enterprises that, as a buyer, if they found that the goods did not meet the contract requirements when they arrived, and wanted to terminate the contract, they should promptly expressly refuse the goods and terminate the transaction contract to the seller. If the goods are not explicitly rejected and retained, they may be deemed to be impliedly accepted in accordance with internationally accepted terms. In addition, the buyer is also obliged to do its best to reduce subsequent losses. If the buyer fails to fulfill this obligation, the court or arbitral tribunal may not support the buyer's full claim for damages.