International Commercial Transactions

Transcription

1 Jan Ramberg International Commercial Transactions ICC Kluwer Law International Norstedts Juridik AB

2 INTERNATIONAL COMMERCIAL TRANSACTIONS Foreword 5 Preface 15 SECTION I MAIN ELEMENTS OF COMMERCIAL TRANSACTIONS 1. PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS Freedom of contract Lex mercatoria Mandatory law INTERNATIONAL CONTRACTS OF SALE The origin of CISG The applicability of CISG and choice of law The formation of the contract of sale Interpretation of contracts The gap-filling function of custom of the trade and non-mandatory law THE TRANSACTIONS The sale of tangibles The sale of intangibles and mixed contracts PAYMENT MODALITIES Simultaneous exchange of goods for money Payment in advance Documentary credit COD and CAD The right of stoppage in transit Retention of title 46

3 8 INTERNATIONAL COMMERCIAL TRANSACTIONS 5. PROTECTION AGAINST BREACHES OF CONTRACT AND CHANGED CIRCUMSTANCES Bid bonds, performance bonds, first demand-guarantees Changed conditions and the principle of binding contracts (pacta sunt servanda) Exemption, force majeure and relief clauses 50 Force majeure clauses 50 Hardship clauses 53 Price adjustment and currency clauses TRADE TERMS AND THE CONTRACT OF CARRIAGE The variants ("from EXW to DDP") 56 Incoterms Changed routines for the performance of the contract of carriage THE RISK OF LOSS, DAMAGE OR DELAY DURING CARRIAGE OF THE GOODS General principles of risk distribution Transport insurance The insurer's recourse actions THE CO-ORDINATION OF THE CONTRACTS OF SALE, CARRIAGE, INSURANCE AND FINANCING The interrelation between the different contracts The traditional importance of the bill of lading The risks inherent in the bill of lading-system Sea waybills Electronic bills of lading RESOLUTION OF DISPUTES Conciliation Court proceedings or arbitration? Some salient features of arbitration Check-list of some important questions in arbitration 85

4 INTERNATIONAL TRADE LAW 9 SECTION II SALES TRANSACTIONS 1. THE SELLER'S PERFORMANCE Specification of the goods and the seller's obligation to ensure conformity The four categories of trade terms (E-, F-, C- and D- Incoterms 1990) The A- and B- classification of seller's and buyer's obligations to deliver and take delivery The main elements of the 13 Incoterms 101 EXW 101 FCA 102 FAS 104 FOB 105 CFR 108 CIF 110 CPT 112 CIP 113 DES 113 DEQ. 114 DAF 114 DDU 115 DDP How to choose the optimal trade term Cost distribution systems GENERAL PRINCIPLES RELATING TO THE BUYER'S REMEDIES FOR THE SELLER'S BREACH OF CONTRACT The buyer's right to require specific performance The buyer's right of avoidance The buyer's right of compensation Exemption from liability for breach THE SELLER'S LIABILITY FOR FAILURE TO DELIVER CONFORMING GOODS The buyer's obligation to examine the goods and notify non-conformity The seller's obligation to cure defects 132

5 10 INTERNATIONAL COMMERCIAL TRANSACTIONS 3.3 The seller's right to cure defects The buyer's right to price reduction The seller's product liability Exemption and limitation of liability clauses THE BUYER'S PERFORMANCE The buyer's payment obligation and the determination of the price The ICC Uniform Customs and Practice for Documentary Credits (UCP500) The buyer's failure to co-operate or to take delivery The buyer's breach of ancillary obligations The seller's right to require the buyer to pay the price The seller's right of avoidance in case of the buyer's breach The seller's right to default interest and damages ANTICIPATORY BREACHES OF CONTRACT Right to suspend performance Right of avoidance in case of anticipatory breach EFFECTS OF AVOIDANCE Avoidance requires notice to the other party (CISG art. 26) Release from and restitution of performance Preservation of the goods in case of the buyer's failure to take delivery or rejection of the goods 162 SECTION III CONTRACTS OF CARRIAGE AND RELATED CONTRACTS 1. THE MARKET FOR TRANSPORTATION SERVICES Charterparty and liner trade for carriage of goods by sea Carriage over land and by air Multimodal transport Freight forwarders and cargo consolidation Freight forwarder documents (the FIATA-documents) THE PARTICULAR RISK DISTRIBUTION UNDER CONTRACTS OF CARRIAGE BY SEA The marine adventure and cost distribution in general average 172

6 INTERNATIONAL TRADE LAW Mandatory minimum liability under the 1924 Bill of Lading convention (the "Hague Rules") The 1978 Hamburg Rules and the resistance to change THE CARRIER'S LIABILITY FOR CARRIAGE OF GOODS BY AIR, RAIL, ROAD AND MULTIMODAL TRANSPORT The contract of carriage determines the scope of application of the respective conventions Airtransport Rail transport Road transport Declarations of value The liability of the multimodal transport operator (MTO) The 1991 UNCTAD/ICC Rules for Multimodal Transport Documents THE LIABILITY OF TERMINAL OPERATORS Freedom of contract prevails The 1991 "OTT-convention" THE LIABILITY OF FREIGHT FORWARDERS The 1967 UNIDROIT draft convention The freight forwarder's liability as carrier The 1996 FIATA Model Rules for Freight Forwarding Services THE INTERRELATION BETWEEN THE CONTRACT OF SALE AND CONTRACTS WITHIN THE TRANSPORT SECTOR 191