外贸合同中常见的陷阱和对策英文论文.docx

精选资料The Common Traps in Foreign Trade Contracts and Corresponding Measures Submitted by: He FenClass: Foreign Trade 11302 Supervised by: Wu JingDepartment of Foreign LanguagesWuhan PolytechnicNovember 23, 2013可修改编辑摘要本文主要研究外贸合同中存在的常见陷阱以及如何采取有效的措施应对。通过查阅相关书籍、网上搜索等方式，分析了外贸大环境、外贸合同的重要性、外贸合同中常见的陷阱，找出避免落入陷阱的方法。我们应该确保合同有效，选择适当的法律和品质表示方法，避免贸易术语和其他条款冲突，按需选择运输方式，避免赔偿金条款欺诈，达成公平合理的检验条款，最终确保交易的顺利进行，安全收汇。关键词: 外贸，合同，常见陷阱可修改编辑AbstractThis paper mainly studies the common traps in foreign trade contracts and how to take effective measures to deal with them. By looking up relevant books or searching the internet, this paper analyzes the foreign trade environment, the importance of foreign trade contract and the common traps in foreign trade contracts. Ways have been found to avoid traps in foreign trade contracts. We should ensure the validity of a contract, choose suitable law and method to represent quality, avoid contradiction between trade terms and any other term, choose shipping methods according to different situations, prevent penal bond clause fraud, agree on fair and reasonable inspection terms. As a result, make the process of the transaction smoothly and get the payment for goods.Keywords: foreign trade, contract, common trapsCONTENTSI. Introduction.1II. The importance of foreign trade contract.1III The common traps in foreign trade contract.1 3.1 A contract is invalid .1 3.2 Choosing inadequate law lead to obstacles to legal protection.2 3.3 Difficulty in meeting the requirement for different quality terms.3 3.4 Trade terms appear contrary to the meaning of the provisions.3 3.5 Shipping provisions traps.3 3.6 Penal bond clause stap.3 3.7 Inadequate convention on the right of inspection.4IV. Ways to avoid traps in foreign trade.4 4.1 Ensure that the contract is valid.4 4.2 Choose proper law .5 4.3 Choose suitable methods to represent quality.5 4.4 Avoid contradiction between trade terms and any other term.5 4.5 Choose right terms of shipment.5 4.6 Measure our performance capability.6 4.7 Agree on fair and reasonable inspection terms.6V. Conclusion.6Bibliography.7可修改编辑I. IntroductionChinas economy develops so quickly owing to its opening to the outside world in recent years. Enterprises are increasingly integrating into the international trade pattern. Generally, international trade refers to the exchange of capital, goods and services across international borders or territories. International trade activities are in the actual international trade. A contract plays a vital and irreplaceable role in the process of international trade. If a foreign trade contract is signed carelessly, the enterprise may be cheated thus suffer heavy economic losses. This article focus on the traps in foreign trade contracts and corresponding preventive measures in order to ensure the transaction goes smoothly.II. The importance of foreign trade contractBuyers and sellers in international trade are far apart, so there are many problems during their process of transactions. Therefore contracts are the key part in international trade. By signing the contract, the two sides can complete tasks exactly under the contract, organize production activities effectively, make use of labor force, material and financial resources rationally, i.e. minimize labor and raw material consumption, accelerate cash flow and enhance the management level. Only in this way can we ensure legal protection so as to avoid later legal disputes and maximize the interests of both sides.III The common traps in foreign trade contract There are a variety of traps that ought to be avoided in foreign trade contract in the international environment nowadays. The relatively common ones are as follows:3.1 A contract is invalid Signing a contract is also called making or setting up a contract. Usually a contract is established when the buyer and the seller come to an agreement. Having not been established, the contract is certainly invalid which has no legally binding force. For example, an American Trading Company and a China Shipbuilding Industry Corporation signed a Chinese contract on September 26, 2013 and an English contract on October 11, 2013. There exist contradictions in terms of content between the two contracts. The seller asked for amendment but the buyer did not agree. Finally, the seller lodged a claim against the buyer for not opening L/C. While the buyer claim for the sellers failure to deliver the goods. We cant consider any of the contact valid for they did not come to an agreement afterwards. Without legally binding force, there is no evidence for their compensation.3.2 Choosing inadequate law lead to obstacles to legal protection In international trade, the law applicable to each contract varies inevitably. There are three ways to choose proper law: 1. apply to countries where the parties to the contract live; 2. subject to International treaties or agreements; 3.refer to international custom like UCP600, URC522. Our Contract Law provides that “ The parties of foreign contract may choose the same law applicable to contractual disputes.” According to this provision, we can choose host countrys laws or the laws of each of the three countries. However, in order to facilitate transactions, companies in our country often give way to unreasonable demands from foreign companies when choosing a Proper-law” of a contract. The foreign companies will generally choose a national law to their advantage. While foreign companies will choose a national law to their advantage or even limited legal proceedings in national courts. If so, it will become very difficult to seek legal protection when we are faced with fraud. 3.3 Difficulty in meeting the requirement for different quality terms There are all kinds of goods in international trade. Methods of representing quality are also different, including sale by sample, sale by specification, sale by standard and so on. If we use two or more methods, especially sell by specification and by sample at the same time, it will become very difficult to meet the requirement. In the process of performing import and export contract, we may be requested to provide samples after stipulating sale by specifications. If we promise to send the samples later, it may lead to contract change, namely sale by sample takes the place of sale by specification. As a result, we will be in a passive situation in the future performance of the contract.3.4 Trade terms appear contrary to the meaning of the provisions Trade terms can determine the nature of the sales contract generally, but it is not the only factor of the nature of a contract. For example, using the term CIF trade is stipulated in a contract, but there is a regulation at the same time, that is “The buyer wont pay the goods unless they arrive at port of destination. Obviously, under the above circumstance, the contract is a reaching contract instead of a shipping contract although using CIF trade terms. It is prone to ambiguity or even conflict if trade terms appear contrary to the meaning of the provisions.3.5 Shipping provisions traps3. 5.1 The choice of shipment date Sometimes, the expiry date of the L/C and the latest date of shipment are the same. Thats bad for getting the payment on goods.3. 5. 2 Improper transportation agreements Goods usually arrive earlier than shipping documents by air as air transport is very fast. To take delivery of the goods in time, the general practice is the consignee delivers the goods by showing arrival notification from air carriers and relevant proof of identity. So the seller has to face the risk of failure in receiving payment.3.6 Penal bond clause stap Penal bond, stipulated in the contract or law, means the breaching shall pay the non-breaching party a certain amount of liquidated damages. It can guarantee the fulfillment of obligation. But it can become a trap if someone promises to do something out of his control. A Chinas company signed a 100 million sand bags export contract with a foreign company. The delivery period is 3 months after the establishment of the contract. The penal bond clause is: If a contracting party fails to fulfill the obligations stipulated in the contract, he has to pay the other party 3.5% of the total contract amount as penal bond. The Chinese company who is eager to expand exports to earn foreign exchange signed the contract with foreign importer. When the day of expiration of the contract comes, the quantity of the sand that can be delivered outwardly cant reach 100 million at all. The Chinese company asked for extension. But the foreign company insisted asking for compensation and gets more than 3 million dollars. 3.7 Inadequate convention on the right of inspection In foreign trade contracts, terms of the relevant export commodity inspection are very important. They are related to the success or failure of a trade and the possibility of recovering damages when problem occurs. Any inadequate convention on the right of inspection would make us suffer loss.IV. Ways to avoid traps in foreign trade In response to the above traps, measures have to be taken to avoid falling into them, ensure the smooth progress of transactions and the receipt of foreign exchange or goods.4.1 Ensure that the contract is valid When it comes to the establishment of a contract, check its terms carefully before you agree to anything. The exporter should pay special attention to terms of payment and inspection. The rights and obligations shall be fair, legal, clear, not ambiguous. Only by this can we ensure the establishment and validity of the contract. After the contract comes into effect, both parties of the contract form the legal relationship of creditors rights debt on the basis of the contract. One party must fulfill the contract obligations and have the right to require the other party to perform the contract, which is legally binding.4.2 Choose proper law You should be careful in the choices of law and the court. The best choice is the law in our country. You can consider choosing a third country law or other laws if necessary. Both parties should be ready to accept the terms, which let both can avoid unnecessary conflict resolution.4.3 Choose suitable methods to represent quality For a product that can be presented in one method of quality, do not use two or more methods at the same time. About the later trap, we should make it clear that sale by specification remains the same even if we send them the samples.4.4 Avoid contradiction between trade terms and any other term If it should have been shipped no later than .” has agreed to “ CIF Hamburg not later than” Such a clause can be considered as goods must arrive at Hamburg at a specific time, In this case, the contract is to reach contract. Another way to think of the seller must be able to ship the goods in time to ensure their punctual arrival at Hamburg. Disputes will arise easily. We must have a good knowledge of trade terms so as to choose a suitable one. Once both parties have agreed on the trade term, then the other terms of the contract that are contrary can not be agreed to avoid disputes.4.5 Choose right terms of shipment4.5.1 Leave a period of time between validity of L/C and shipping date In order to make it convenient for the seller to make relative documents and complete settlement procedures after shipping the goods in time, we should leave a period of time between the validity of L/C and date of shipment. Generally speaking, the expiry date of the L/C shall be 15 days or 1 month later than the date of shipment. The sell will have enough time to make documents and settlement in this way.4.5.2 Make credit investigation and choose reliable payment terms To prevent delivery of the goods without payment later, the buyer should pay attention to the selection of customers by making credit investigation. Select the most favorable terms of payment like advance payment. Confirmed L/C is OK if the buyer refuses to pay in advance. The seller can request that the consignee of the airway bill filled in as the issuing bank to ensure that the goods and money in a safe condition.4.6 Measure our performance capability Concerning the sand bags case, the Chinese company will not suffer so much economic loss if he can rationally analyze their performance capabilities and fully consider penal bond clause and enhance awareness of prevention. To prevent penal bond clause fraud, the main measures lies in their ability to be aware of the actual performance. When signing a contract, we should know well about our ability, do not be fooled by the surface of the generous profits. The performance capability factors include: sourcing, production and processing capacity, raw material supply, acquisition of funds, export license, compliance deadline and so