英语学习9280521094.ppt

1、Chapter Eleven Inspection, Claim, Force Majeure and Arbitration,Unit One,Objectives,Skill Trainning,Exercises,Text Structure,Specimen Letters,Objectives: Upon completion of this chapter, you will,Understand what is a commodity inspection Know how to stipulate claim clauses in sales contracts Be awar

2、e of the definition and consequences of force majeure Understand the definition and procedures of arbitration Write fluent English letters on inspection, claim and arbitration,Text Structure,11.1. Commodity Inspection 11.1.1 Place and Time of Inspection 11.1.2 Inspection Bodies 11.1.3 Inspection Sta

3、ndards 11.1.4 Major Inspection Certificates 11.1.5 Inspection Clause in the Sales Contracts 11.2 Complaints and Claims 11.2.1 Types of Claims 11.2.2 Claim Clause in Sales Contracts 11.3 Force Majeure 11.3.1 Consequences of Force Majeure 11.3.2 Force Majeure Clause in Sales Contract 11.4 Arbitration

4、11.4.1 The definition of Arbitration 11.4.2 Features of the Arbitration 11.4.3 Arbitration Procedures 11.4.4 Arbitration Clause in Sales Contract,Introduction,In this chapter, several ways of settling disputes between buyers and sellers will be illustrated，including executing an inspection, filing a

5、 claim or arbitration etc. Based on the theoretical framework, this chapter provides several choices for the parties concerned to protect their business interest. This chapter focuses on the settlement of the disputes between the two parties and provides several alternatives for the one who suffers

6、to make a decision. The first part introduces the relevant information about inspection, claim, force majure and arbitration. The second part focuses on the sample letters to make clear how to deal with the disputes under similar circumstances. And the third part stresses the necessary skills in the

7、 settlement of disputes.,arbitration,:bitrein n.仲裁,公断 ;仲裁申请书,11.1 Commodity Inspection,Inspection is of great importance in international trade, which is an indispensable clause of a contract. Commodity inspection is an activity closely related to the concerned parties, which refers to the fact that

8、 both imports and exports are inspected to see that the ordered goods are the same as what the importer intends to buy. Commodity inspection is usually conducted by an authorized third party to testify whether the quality, quantity, weight, package etc. are the same as those specified in the contrac

9、t. Laws and regulations in various countries as well as international conventions have imposed inspection obligations on both the sellers and the buyers. Both the seller and the buyer pay more attention to the inspection of the goods transacted. Therefore, inspection may be made by the seller and th

10、e buyer themselves. As to the seller, it has much to do with his reputation in the business line. As to the buyer, inspection directly affects and protects his own interest. The failure of the inspection may lead to disputes and conflicts between the two parties.,indispensable,indispensbl adj.必不可少的,

11、必需的,11.1 Commodity Inspection,Usually the goods will be inspected at the port of shipment and re-inspected at the port of destination. If the inspection and re-inspection are the same, there will be no disputes between the buyer and seller. If not, disputes may arise and the buyer shall have the rig

12、ht to lodge a claim against the seller. He may submit the relative inspection certificates issued by a contracted inspection organization to the concerned department for a claim or arbitration. He must deal with it within the time specified in their contract.,lodgeldvt.提出(申诉,抗议等)(+with),11.1.1 Place

13、 and Time of Inspection,United Nations Convention on Contracts for the International Sale of Goods（CISG）(1980) points out that the buyer has the right to inspect the goods except that the two parities have agreed no inspection. CISG also stipulates the time and place of inspection in detail. The ins

14、pection of the goods can be effected at various stages of the trade process. Generally there are three ways to stipulate the place and time of inspection in the sales contract, which are stated as follows. Inspection at the factory or at the port of shipment Inspection at the factory or at the port

15、of shipment is also known as shipping quality and weight. It means that the inspection conducted at the sellers factory or at the port of shipment is final. The inspection certificates issued at the factory or at the port of shipment is considered final for the delivery of the goods by the seller. I

16、t is in the sellers favor because although the buyer can re-inspect the goods, the certificates issued can not be served as proofs for compensation.,CISG abbr.联合国国际货物销售合同公约,11.1.1 Place and Time of Inspection,Inspection at the port of destination Inspection at the port of destination is also referre

17、d to as landed quality and weight. In this case, the inspection is carried out at the port of destination and is considered final. This inspection of the commodity is favorable to the buyer. Inspection at the port of shipment and re-inspection at the port of destination To avoid disputes and make th

18、e inspection more impartial to both sides, the third way arises. The seller may inspect the commodity at the port of shipment, and at the same time, the buyer also has the right to inspect the goods at the port of destination. If there is a discrepancy between the two inspections, the buyer may have

19、 the right to ask for a claim by presenting the relative inspection certificates within the valid time in the contract. This method benefits both buyers and sellers; therefore, it is often preferred by both sides.,discrepancydiskrepnsi n. 不一致,不符,差异;不一致之处,11.1.2 Inspection Bodies,Inspections must be

20、conducted by authorized inspection bodies or agencies; otherwise, they will not be acknowledged and accepted. Inspection bodies can be divided as governmental ones and non-governmental ones. The former is owned and supervised by governments and specializes in inspection of particular commodities or

21、commodities subject to mandatory inspection by government. An example is the Food and Drugs Administration (FDA) in the United States which specializes in inspection of particular merchandise like grain and drug. In China, the State Administration for Commodity Inspection (SACI) and its designated p

22、rovincial divisions are in charge of the inspection of import and export commodities. In international trade, the inspections of commodities are usually conducted by non-governmental bodies which have the same legal status as notary organizations and associations. The famous ones include Societe Gen

23、erale De Surveillance S.A. (SGS) in Geneva, Swiss, Underwriters Laboratory (UL) in the USA etc.,mandatorymndtri adj. 1. 命令的;指令的 2. 委任统治的 3. 义务的;强制的,FDA:abbr. (美国)食品及药物管理局,notarynutri n. 公证人,SACI: abbr.（中国） 国家商品检验局,11.1.2 Inspection Bodies,The major task of the inspection bodies is to inspect commodi

24、ties for import and export in order to protect the interests of the buyers and sellers. Their basic tasks can be stated as follows: Statutory inspection on import and export It refers to the mandatory inspection carried out by the government bodies on imports and exports. Such an inspection is a mus

25、t both for the buyers and sellers. ASCI publishes a List of Import and Export Commodities Subject to Inspection by the Commodity Inspection Authorities to provide a basis for the international trade. To exercise supervision and control In our country, it is SACI that exercises the supervision and co

26、ntrol over the inspection conducted by inspection agencies and personnel designated or accredited by the consignees, manufacturers etc. To survey import and export commodities SACI as well as its designated inspection agencies may accept the entrustment of the trading parties or by foreign inspectio

27、n organizations for surveying services of the commodities within specified scope, and then may issue certificates of the survey if required.,accreditedkreditid a. 1. 公认的 2. 鉴定合格的;达标的,11.1.3 Inspection Standards,Inspection authorities will make inspection according to the following standards, and the

28、n the certificate issued can be proved to be right. First, the inspection on import and export commodities must cover quality, specifications, quantity, weight, packing and the requirements for safety and hygiene. For the mandatory standards, the inspection shall be made based on the standards as sp

29、ecified in the Law of the Peoples Republic of China on Import and Export Commodity Inspection and the Regulations for the Implementation of the Law of the Peoples Republic of China on Import and Export Commodity Inspection. Second, if not a mandatory standards, the inspection can be conducted accord

30、ing to the standards agreed upon in the international trade contracts. Third, if the compulsory standards or other inspection standards are lower than the agreed standards in the trade contract, the inspection will be conducted according to the standards agreed in the contract.,hygienehaidi:n n. 卫生学

31、;保健法,Finally, in the case where there lack the inspection standards specified in the laws and the regulations, and in case the inspection standards are not agreed upon in the contract, the inspection can be performed by following the standards of the manufacturing country, or relative international

32、standards or the standards specified by the state inspection organizations.,11.1.3 Inspection Standards,11.1.4 Major Inspection Certificates,After the inspection, the inspection authorities may issue an inspection statement, which is called inspection certificate. The major inspection certificates b

33、y the Chinese inspection authorities are as follows. Inspection certificate of quality It certifies that the quality and specifications of the commodity are in conformity with the stipulations in the contract. Inspection certificate of quantity or weight It certifies that the weight or quantity of t

34、he commodity is the same with the stipulations in the contract. Inspection certificate of value It certifies that the price of the commodity in the invoice truly reflects the value of the goods transacted. Inspection certificate of origin It certifies that the name of the place is where the export c

35、ommodity has been produced or manufactured.,Inspection certificate of quality质量检验证书,Inspection certificate of Value价值检验证书,Inspection certificate of quantity/weight 数量/重量检验证书,Inspection certificate of origin 产地检验证书,11.1.4 Major Inspection Certificates,Sanitary inspection certificate It certifies that

36、 the foods and animal products for eating are in conformity with the standards for export. Veterinary inspection certificate It certifies that the animals to be exported are in a good condition for export. Disinfection inspection certificate. It certifies that the exported products have been disinfe

37、cted. Inspection certificate on damaged cargo It certifies the damaged degree of the goods transacted and the reasons for the damage.,sanitaryinspectioncertificate卫生检验证书,veterinaryinspectioncertificate兽医检验证书,disinfectioninspectioncertificate消毒检验证书,inspectioncertificateon damaged cargo验残检验证书,11.1.5 I

38、nspection Clause in the Sales Contracts,In international trade contracts, the inspection clauses usually include terms and stipulations on the inspection right, the time and place of the inspection as well as re-inspection, the inspection agencies and items, the inspection certificates etc. The foll

39、owing is an example of inspection clause in a sales contract. “It is mutually agreed that the certificate of quality and quantity/weight issued by the Manufacturer/XXX Surveyor at the port of shipment shall be part of the documents for payment under the relevant L/C. The buyers shall have the right

40、to re-inspect the quality and quantity/weight of the goods. The re-inspection fee shall be borne by the buyers. Should the quality and/or quantity/weight be found not in conformity with that of the contract, the buyers shall return the goods to or lodge a claim against the sellers for compensation o

41、f losses which should be supported by survey reports issued by a recognized surveyor approved by the sellers. All expenses including inspection fees and losses arising from the return of the cargo or claims should be borne by the sellers. The claim, if any, shall be lodged within XX days after arriv

42、al of the cargo at the port of destination.”.,surveyors:vei.1.海关验货员 2调查员;考察者,11.2 Complaints and Claims,In business negotiation it is very common to conduct complaints or claims by one party against another. The disputes between the seller and buyer sometimes are unavoidable when orders may be fulfi

43、lled improperly or incompletely, or goods may be damaged and unsatisfactory after the arrival. The delay of shipment also may lead to disputes and conflicts. On these occasions, the buyers shall write letters to invite the attention of the related parties for a complaint or claim. It is known that t

44、he last stage in international trades often involves the settlement of disputes. However, the purpose of writing a letter of complaint or claim is to get better service or reasonable compensation instead of just accusing the others. In order to settle the problem smoothly and keep a good relationshi

45、p between the buyer and seller, a complaint or claim letter should be made in a restrained and tactful way.,complaintkmpleint1.投诉；2.抱怨，抗议，怨言,claimkleim 1.(根据权利而提出的)要求 2. (对保险公司的)索赔,11.2 Complaints and Claims,In a complaint or claim letter, the following three elements usually are involved. To presen

46、t facts in detail to explain what is wrong with the transaction. Exact dates, name and quantity of the commodity, contract number or other specific information are usually notified for the sellers recheck. To state the inconvenience or loss that has resulted from this error to strengthen your argume

47、nt for compensation. To state how you want the reader to act and stimulate prompt investigation and action. Once a trader receives a complaint or claim letter, it is important for him to conduct a prompt reply, no matter how trivial it is. The reply letter should be fair, factual and polite. If he a

48、dmits it is his error, he should acknowledge it and express his apologies as well as state what his company will do to settle the matter. If it is not his error, state it seriously in his letter and try to avoid conflicts with another party.,11.2.1 Types of Claim,Generally there are three types of c

49、laim: claim regarding selling and buying, claim regarding transportation and claim regarding insurance. Among the three types, only the first one is covered between the two parties of the sales contract. In business transaction, the most common claims are about quality, shortage of quantity, late de

50、livery and wrong delivery. Since the cargo may be damaged or lost during transportation, it is necessary to include a claim clause in a sales contract. In case the goods delivered are inconformity with the contract terms and conditions, the buyer may make a claim against the seller within the valid

51、time of re-inspection under the support of an inspection certificate or survey statement.,11.2.2 Claim Clause in Sales Contracts,In order to avoid or to properly deal with future disputes and conflicts, it is very necessary to include a claim clause in a sales contract. Two claim clauses can be mani

52、pulated in a contract to keep the transaction smooth. Discrepancy and Claim Clause This is the most commonly adopted claim clause in sales contracts, which usually includes the basis for claim, that is, the evidences to be provided, and the term of validity of claim. If a claim is justified, prompt

53、and well-supported, it can be settled smoothly. The seller may make a refund, compensate for the direct losses or expenses, sell the commodity at a lower price or replace the defective goods with qualified substitutes. Sometimes discrepancy and claim clause may be combined with the inspection clause

54、 due to the close relationship between the two.,manipulatemnipjuleit 1.(熟练地)操作;2.巧妙地处理;,11.2.2 Claim Clause in Sales Contracts,Penalty Clause Besides a discrepancy and claim clause, a penalty clause is often included in sales contract in case one party fails to fulfill the contract. Sometimes the bu

55、yer may fail to delay in opening of L/C, or the seller fails to deliver the goods or delay the delivery and so on. Then under this clause, the side who has failed to carry out the contract must pay a fine, which usually is a certain percentage of total contract value. The following is an example of

56、the claim clause in a sales contract: Any claim by the buyers regarding the goods shipped shall be filed within XX days after its arrival at the port of destination specified in the relative Bill of Lading and supported by a survey report issued by a surveyor authorized by the sellers.,penalty claus

57、e 固定词组 ph. 罚款条例(合同中规定未能如期履约者偿付罚款的条例),11.2.2 Claim Clause in Sales Contracts,The following is an example of the penalty clause regarding the delay in opening an L/C: “Should the buyers for its own sake fail to open the letter of credit on time stipulated in the contract, the buyers shall pay a penalt

58、y to the sellers. The penalty shall be charged at the rate of 0.5% of the value of the letter of credit; however, the penalty shall not exceed 5% of the total value of the credit which the buyers should have opened. Any fractional days less than ten days shall be deemed to be ten days for the calcul

59、ation of penalty. The penalty shall be the sole compensation for the damage caused by such delay.”,11.3 Force Majeure,Force majeure comes from the French phrase “superior force”, which is also known as Act of God. Force majeure is a default of the contract which is given rise to not because of contracting partiess default, but because of the uncontrollable causes. One type of the causes is the natural forces such as natural disasters, and