Chapter-Ten-disputes-claim-and---settlementPPT优秀课件

1、1Chapter Ten Disputes. Claim and Arbitration2On this chapter , you should knowWhat are the definitions of claim and settlement? How could you read them in Chinese?Why is arbitration a commonly used settlement of disputes in international trade?Give a brief analysis of the reasons for disputes in int

2、ernational trade?What is Force Majeure? Judge the situation of Force Majeure.Whats the differences between arbitration and legal actions 3Section One Disputes and Claim1.breach of contract（违约）Breach of contract means the refusal or failure by a party to a contract to fulfill an obligations imposed o

3、n him under that contract , resulting from , e.g. , repudiation of liability before completion , or conduct preventing proper performance.41) Breach by the seller A seller may breach the contract By failing to make delivery according to shipment date stated in the contractBy failing to delivery the

4、goodsBy delivering the goods that does not conform with the contract or the L/C in respect of quality, specifications, quantity and packing etc.By presenting shipping documents that are incomplete and inadequate.51) Breach by the buyerA buyer may breach the contractBy failing to open relevant L/C ac

5、cording to the stipulated periodBy refusing to accept goods if no acceptable reasons involvedBy refusing make payment enoughBy failing to dispatch the vessel according to the contract on FOB basis, etc63) Both parties are held responsibleBoth parities may be held responsible by misunderstanding or m

6、iscomprehension of the contract that is not clearly stipulated. 72.DisputesDisputes often arise between the two parties when one party thinks that the other fails to carry out the duties stipulated in the contract wholly or partially, which very likely leads to claim , arbitration and legal action.T

7、he main reasons may be non-performance or incomplete performance of the contract caused by the seller , buyer and both parties.83.ClaimClaim means that in international trade, one party breaks the contract and causes losses to the other party directly or indirectly, the party suffering the losses ma

8、y ask for compensation for the losses .9In case the sellers are liable for the nonconformity of the goods with the contract and a claim is made by the buyers within the period of claim or the period of quality guarantee stipulated in the contract , the seller may settle the claim upon the agreement

9、of buyers in the following ways:10(1)Agree to the rejection of the goods and refund to the buyers the value of the rejected goods in the same currency, and bear all direct losses and expenses incurred from the rejection, such as banking charges, storage and inspection charges, etc 11(2) Devaluating

10、the goods according to the degree of inferiority, extent of damage and amount of losses (3) Replacing the defective goods with new ones that conform to the specifications, quality and performance as stipulated in the contract.12Attention for claim(1) discrepancy and claim clause(异议和索赔条款)In case of a

11、ny discrepancy in Quality/Quantity, claim shouldbe filed by the Buyer within 130 days after the arrival of the goods at port of destination; while for quantity discrepancy, claim should be filed by the Buyer within 150 days after the arrival of the goods at port of destination.13(2) proofs(3) period

12、 for claimGeneral speaking , a period that is too long may put the seller under heavy responsibility and a period that is too short may make it impossible for the buyer to file a claim.In addition a detailed stipulation in respect of the starting date for making a claim should also be included in th

13、e clauses.14(4)penaltyClause in respect of penalty in a contract should stipulate that “any party who fails to perform the contract shall pay an agreed amount as penalty for compensation the other party for the damages”.Penalty clause is fixed where the seller fails to make timely delivery; the buye

14、r fails to open the relevant L/C or the buyer fails to take delivery on time . And the penalty ceiling is also included in the contract.15The clause of penalty Should the buyers for its own sake fail to open the L/C on time stipulated in the contract, the buyers shall pay a penalty to the sellers. T

15、he penalty shall be charged at the rate of 1% of the amount of the L/C, however, the penalty shall not exceed 10% of the total value of the L/C which the buyers should have opened. Any fractional days less than ten daysshall be deemed to be ten days for the calculation of penalty.16 Case Study 某国一公司

16、以CIF鹿特丹出口食品1000箱，即期信用证付款，货物装运后，出口商凭已装船清洁提单和已投保一切险及战争险的保险单，向银行收妥货款。货到目的港后，经进口商复验发现下列情况：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箱内含有沙门氏细菌超过合同标准。2、收货人实际收到998箱，缺少2箱。3、有15箱货物外表状况良好，但箱内货物共缺少60公斤。Question：根据上述案情，进口商应分别向谁索赔？17Section Two Force Majeure1. Definition of force majeureForce Majeure means that the frust

17、ration of the contract by the party in question results from natural or social forces including flood, earthquake, typhoon, fire, war and government decrees of prohibition beyond the control of man; this party shall be free from liability for performance, or be given an option of prolonging the perf

18、ormance of the contract owing to the above-mentioned event or series of events.182.Features of Force MajeureIt happens after the contract is signed;It is not due to the negligence of the buyer or the seller;Neither the buyer nor the seller can control the situation.193. Consequences of force majeure

19、1) Termination of contractIn cases of natural disasters or other events that have made it impossible to fulfill the contract, the contract can be terminated.2) Postponement of contractIn cases of events (such as transportation stoppage caused by an earthquake) that will only delay the fulfillment of

20、 a contract, the contract can be postponed but not terminated since it is still possible for the seller to carry out his contract obligations.204. Points to remember when drafting the clause1) Determine the scopeThe kinds of events that are to be considered as force majeure should be specified as cl

21、early as possible. For instance, some people include social disturbances or strikes as force majeure events, but some other people disagree. If the scope of the events is not clearly defined, there might be difficulties in using the clause.21There are basically three ways to set the scope: General s

22、tipulation: “generally recognized force majeure causes”; Specific listing: “war, flood, storm, heavy snow”; Specific listing plus general stipulation: “war, flood, storm, heavy snow or any other causes beyond their control/and other generally recognized force majeure causes”. Question: which kinds o

23、f stipulation is the best choice?222) Specify the consequencesSince there are different consequences of a force majeure, the clause should specify when the contract can be terminated and when it can only be postponed. For example, the contract can be canceled only if the force majeure lasts over one

24、 month.233) Designate the agency to issue certificateA force majeure should be verified by a certificate issued by government authorities or a chamber of commerce at the location where the event takes place. The clause should specify which agency is to be the issuer.244) Set the time limit of notice

25、 to the other contractor In case of a force majeure event, the party who wants to quote the clause should inform the other party of his decision within a reasonable time limit.25Case Study 有一份合同，印度A公司向美国B公司出口一批黄麻。在合同履行的过程中，印度政府宣布对黄麻实行出口许可证和配额制度。A公司因无法取得出口许可证而无法向美国B公司出口黄麻，遂以不可抗力为由主张解除合同。 问：印度公司能否主张这种

26、权利？为什么？26Section Three Arbitration1.definition of arbitrationArbitration means that the two parties ,before or after the disputes arise , reach a written agreement that they will submit the disputes which cannot be settled through amicable negotiations to the third party for arbitration.272.The diff

27、erences between arbitration and legal actions (1) The legal action has jurisdiction , while arbitration has not.(2) Arbitration is of the two parties own will, in case no agreement can be reached, any party cannot force the other party to submit to arbitration28(3)The arbitration organization is not

28、 an official one, which has no jurisdiction. (4)Arbitration can be handled according to commercial practices, so arbitration is more flexible and permissive.293. Contents of the clause(1) place of arbitration:Location is not only a matter of convenience. It is also related to the application of the

29、law system under which the dispute is settled. The location can be anywhere in the sellers country, the buyers country or a third country. No matter where the arbitration takes place, the location must be politically and professionally acceptable.30(2)arbitration bodyIn China, China International Economic and Trade Arbitration Commission (中国国际经济贸易仲裁委员会)and Maritime Arbitration Commission(海事仲裁委员会) are permanent arbitration organization. In addition, there is interim ar