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Chapter ten

Chapter ten. Inspection Claim Arbitration Force majeure. 1. Inspection. Commodity inspection is an absolutely important step in international trade. United Nations Convention on Contract for the International Sale of Goods (CISG) and the

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Chapter ten

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  1. Chapter ten Inspection Claim Arbitration Force majeure

  2. 1. Inspection • Commodity inspection is an absolutely important step in international trade. United • Nations Convention on Contract for the • International Sale of Goods (CISG) and the • laws of various countries have made similar • stipulations on the buyer’s right of inspection. • It is the foundation on which the buyer makes the acceptance before making payment of the goods. It still works as the evidence of the claim and reimbursement for a loss.

  3. Inspection body. • Export and import commodity inspections are quite popular in international trade which executed by a third party generally known as surveyor. Some of the surveyors are governmental institutions, others are non-governmental ones running by individuals or trade associations.

  4. International inspection body • SGS in Geneva Swiss • Edward T. Robertson & Son ; • Lloyd Surveyor, B.V. in the United Kingdom, • NKKK (Japan Marine Surveyors & Sworn Measurer Association), • Underwriters Laboratory (UL) in the U.S.A.

  5. Inspection authority in China • The China Import and Export Commodity Inspection Bureau is the main institution authorized to exercise quality, quantity and other kinds of controls over export and import commodities and notarize documents related to foreign trade.

  6. The place and time of inspections in the contract • Shipping Quality/ Weight (Quantity) as Final • Landing Quality/ Weight (Quantity) as Final • Inspection at the port of shipment and Re-inspection at the port of destination

  7. Inspection certificate • The inspection certificate is a document which is issued by commodity inspection authority describing the quality, quantity, packing or other conditions of the goods and confirming that they have been inspected.

  8. Inspection clause in the sales contract • It is mutually agreed the Certificate of Quality and Weight (Quantity) issued by the China Import and Export Commodity Inspection Bureau at the port of shipment shall be part of the documents to be presented for negotiation under the relevant L/C. The Buyers shall have the right to re-inspect the quality and weight of the cargo for his own account. Should the quality and/or weight (quantity) be found not in conformity with that of the contract, the Buyer is entitled to lodge with the Seller a claim which should be supported by survey reports issued by a recognized surveyor approved by the seller.

  9. 2. Dispute & Claim • 概念：合同一方认为对方没有全部或部分履行合同，引起争议。受损害的一方向违约方提出赔偿要求。 • 各国对违约的解释： • 英国法：违反要价和违反担保 • 美国法：轻微违约和重大违约 • 德国法：给付不能和给付延迟 • 《公约》：根本性违约和非根本性违约

  10. 违约后果 • 损害赔偿 • 解除合同 • 解除合同进而要求损害赔偿 • 合同条款： • 1.异议与索赔条款 • 2.罚金条款

  11. 范例 • Any claim by the buyer regarding the goods shipped should be filed within 30days after arrival of the goods at the port/place 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 matters within responsibility of insurance company, shipping company will not be considered or entertained by he seller.

  12. Force Majeure • 英美法中：合同落空 • 大陆法中：情势变迁或契约失效 • 指合同签订以后，不是由于当事人的过失，而是发生了当事人无法预见和避免的意外事故，以致合同不能履行或不能如期履行。遭受意外事故的一方可以免除履行或延期履行合同。

  13. 仲裁(Arbitration) • 争议解决的方法: • 1.友好协商(negotiation) • 2.调节(Intermediation)（私下） • 3.仲裁：也称公断，是指争议双方达成协议，自愿将争议交双方同意的第三者予以裁决。 • 4.诉讼（litigation)

  14. 仲裁条款内容 • 仲裁地点的选择 • 仲裁机构的确定 • 仲裁程序 • 裁决效力

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