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Harmonization of Contract Law“合同法”的统一
Export sales contracts are central to international commercial transactions and around it revolves a series of connected, but distinct, relationships, including, cargo insurance, transportation, and payment arrangements. 出口销售合同是在国际商业交易的中心，周围围绕一系列相连的，但不同的关系，包括货运保险，运输，及付款安排。
The rules and practices governing such contracts vary from one export transaction to another, based on the agreement of the parties as well as the legal system. 此类合同的规则和做法各不相同，从一个出口交易，根据双方当事人协议，以及法律制度。
National legal systems on contracts may differ, but the basic principles of contracts, such as good faith and consideration, are generally recognized and accepted in many countries. 国家法律制度的合约可能会有所不同，但基本原则的合同，诚信和考虑，如在许多国家的普遍认可和接受。
CISG: Essential elements:基本要素：
口头合同
Oral contracts
A contract need not be concluded in or evidenced in writing.合同需要完成或以书面证明。
Import companies that negotiate contracts by phone may be under the impression that the agreement will not be enforceable since it is not made in writing.公司导入可能是通过电话进行合同谈判，该协议将无法执行，因为它不是以书面形式提出的印象。
However, they could be held liable under CISG if they either verbally accept an offer or their international busniess Courseware verbal offer is accepted by the other party.然而，他们可以追究法律责任，根据“销售公约”，如果他们口头接受的报价，或接受对方的口头报价
CISG, however, allows members to opt out of this provision (in favor of domestic law that requires a writing).“销售公约”，但是，允许成员退出本规定的（赞成的国内法规定采用书面形式的）。
Parole evidence假释证据
Prior oral statements (including witness testimony) are potentially enforceable and can be used to challenge the provisions of a written contract.在此之前的口头陈述（包括证人证言）是潜在的强制执行，并可以用来挑战的书面合同的规定。
Thus, exporters-importers have to be cautious about representations made during the negotiations which are not intended to be part of the written contract since oral statements could be construed as part of the written contract (if used to prove intent).因此，出口商，进口商必须是不打算口头陈述的书面合同的一部分，因为可以解释为书面合同的一部分（如果使用的证明意图）在谈判过程中作出的陈述持谨慎态度。
One solution is to include an integration clause which states that the written contract was the entire agreement and that no other agreements or evidence, which is contradictory would be admissible.一种解决方案是包括一个集成的条款规定，书面合同的全部协议和任何其他协议或证据，这是矛盾的，会被接纳。
Battle of the forms
A reply to a sales offer which purports to be an acceptance but contains additions or modifications is a rejection of the offer and constitutes a counteroffer.
However, if the counteroffer does not materially alter the terms of the offer, it constitutes an acceptance unless objected and notified by the offeror.
Material terms include price, payment, quantity, and quality of goods, place and time of delivery, and liability.
Duty to inspect and proper notice
In the event that the buyer receives nonconforming goods, he/she must give timely (within a short period as is practicable) and effective notice of nonconformity (specify the nature of nonconformity).
The buyer’s notice such as “the goods are rancid” or “poor workmanship and improper fitting of the goods” were considered by courts as being insufficiently specific and regarded as no notice.
Right to remedy deficiencies
CISG permits the seller to remedy the delivery of defective goods after the time of performance has expired unless such delivery would cause the buyer “unreasonable inconvenience and uncertainty”.
The buyer reserves the right to sue for damages caused by the delay or buy the initial delivery of nonconforming goods.
Exemptions from liability
The CISG exempts a party from liability for failure to perform any of his/her obligations due to reasons beyond his/her control and was not foreseeable at the time of the contract formation.
Prompt notice of the impediment is required to avoid damages.
The following circumstances do not give rise to exemptions from liability:
Financial difficulties of seller’s supplier
Buyer’s inability to obtain foreign currency
Increases in the cost of goods
Delivery problems due to production stoppages.
Major Clauses in Export Contracts
Scope of work
The goods to be sold should be clearly spelled out in the contract.
There is also a need to include the scope of work to be performed by the exporter, such as installation, training, and other services.
Price and delivery terms
The total price could be stated at the time of the contract, with a price escalation clause that provides for increases in the price if certain events occur. Such provisions are commonly used with goods that are to be manufactured by the exporter over a certain period of time and when inflation is expected to affect material and labor costs.
The most common type of clause included in export contracts is one that provides for a fixed or approximate delivery date and that stipulates the circumstances under which the seller will be excused for delay in performance and even for complete inability to perform.
Quality, performance, and liability
Most contracts state that the seller warrants to the buyer that the goods manufactured by the seller will be free from defects in material, workmanship, and title and will be of the kind and quality described in the contract.
It is not uncommon to find deficiencies in performance, even when the exporter provides a product with state–of–the–art design, material, and workmanship.
Taxes and duties
In the United States, Canada, and other developed countries, an exporter will not be subject to any taxes (i.e., when products are exported to these countries) if business is not performed through an agent, a branch, or a subsidiary.
However, when the price includes a breakdown for installation and other services to be performed in the importing country, such income could be taxable as earnings from services.
Guarantees and bonds
It is quite common for overseas importers to require some form of guarantee or bond against the exporter’s default.
Public agencies in many countries are often prohibited from entering into major contracts without some form of bank guarantee or bond.
Guarantees are more commonly used than bonds in most international contracts.
These are separate contracts and independent of the export agreement.
Applicable law and dispute settlement
The fundamental principle of international contract law is that of freedom of contract.
This means that the parties are at liberty to agree between themselves as to what rules should govern their contract.
Most contracts state the applicable law to be that of the exporter’s country.
Documents Frequently Used in Export–Import Transactions
Air waybill
The air waybill is a contract of carriage between the shipper and air carrier. It is issued by the air carrier and serves as a receipt for the shipper.
When the shipper gives the cargo to a freight consolidator or forwarder for transportation, the air waybill is obtained from the consolidator or forwarder.
Bill of exchange
A bill of exchange is an unconditional written order by one party (the drawer) that orders a second party (the debtor or drawee) to pay a certain sum of money to the drawer (creditor) or designated third party.
Bill of lading
A bill of lading is a contract of carriage between the shipper and the steamship company (carrier).
It certifies ownership and receipt of goods by the carrier for shipment. It is issued by the carrier to the shipper.
Clean / Claused bill of lading
The bill of lading form is normally filled out in advance by the shipper.
The carrier will check the goods loaded on the ship to ensure that they comply with the goods listed (quantity, condition etc.) on the bill of lading.
If all appears proper, the carrier will issue a clean bill of lading certifying that the goods have been properly loaded on board the ship.
Inland Bill of Lading
An inland bill of lading is a bill of lading issued by the railway carrier or trucking firm certifying carriage of goods from the place where the exporter is located to the point of exit for shipment overseas.
This document is issued by exporters to consign goods to a freight forwarder who will transport the goods by rail to an airport, seaport, or truck for shipment.
Through Bill of Lading
A through bill of lading is used for intermodal transportation, that is, when different modes of transportation are used.
The first carrier will issue a through bill of lading and is generally responsible for the delivery of the cargo to the final destination.
Consular invoice#p#分页标题#e#
Certain nations require a consular invoice for customs, statistical, and other purposes.
It must be obtained from the consulate of the country to which the goods are being shipped and usually must be prepared in the language of that country.
Certificate of origin
A certificate of origin is required by certain countries to enable them to determine whether the product is eligible for preferential duty treatment.
It is a statement as to the origin of the export product and usually is obtained from local chambers of commerce.
Dock’s receipt
This receipt is used to transfer accountability when the export item is moved by the domestic carrier to the port of embarkation and left with the international carrier for export.
Destination control statement
This statement appears on the commercial invoice, bill of lading, air waybill, and shipper’s export declaration. It is intended to notify the carrier and other parties that the item may only be exported to certain destinations.
Shipper’s export declaration
A shipper’s export declaration (SED) is issued to control certain exports and to compile trade data.
It is required for shipments valued at more than $2,500. Carriers and exporters are also required to declare dangerous cargo.
Pro forma invoice
A pro forma invoice is a provisional invoice sent to the prospective buyer, usually in response to the latter’s request for a price quotation.
Export packing list
An export packing list itemizes the material in each individual package and indicates the type of package (e.g., box, carton).
Manifest
A detailed summary of the total cargo of a vessel (by each loading port) for customs purposes.
Air Transportation
Reasons for the Growth of Airfreight
Growing demand for imports of heavy equipment and services in many developing countries
The need for timely delivery of imports
Technological changes
The role of integrators and forwarders
Determinants of Air Cargo Rates
Distance
Weight and size of cargo
Commodity description
Special services
Inspection certificate
Some purchasers and countries may require a certificate attesting to the specifications of the goods shipped, usually performed by a third party.
Such requirements are usually stated in the contract and quotation.
Insurance certificate
When the exporter provides insurance, it is necessary to furnish an insurance certificate that states the type, terms, and amount of insurance coverage.
The certificates are negotiable and must be endorsed before presentation to the bank.
Commercial invoice
A commercial invoice is a bill for the merchandise from the seller to the buyer.
It should include basic information about the transaction: description of the goods, delivery and payment terms, order date, and number.
Ocean Freight
Ocean shipping is the least expensive and the dominant mode of transportation in foreign trade. It is especially suitable for moving bulk freight such as commodities and other raw materials.
Types of ocean carriers
Private fleet
These are large fleets of specialized ships owned and managed by merchants and manufacturers to carry their own goods.
Tramps
Tramps are vessels leased to transport, usually, large quantities of bulk cargo (oil, coal, grain, sugar, etc.) that fill the entire ship (vessel).
Conference lines
A shipping conference line is a voluntary association of ocean carriers operating on a particular trade route between two or more countries.
Land Transport
1. Rail transport: handles bulk cargo; absorbs loading, unloading, and other charges
2. Trucking: compared to rail transport, trucking has the advantage of flexibility, faster service, and lower transportation costs
Freight Forwarders
A freight forwarder facilitates the movement of cargo to the overseas destination on behalf of shippers and processes the documentation or performs activities related to those developments.
Role and function of a freight forwarder:
1. Advises shipper on the most economical choice of transportation.
2. Books space and arranges for pickup, transportation, and delivery of goods.
Licensing requirements: To be eligible for a license as a freight forwarder, the applicant must demonstrate to the FMC that he or she has
1. a minimum of three years’ experience in ocean freight forwarding duties in the United States;
2. the necessary character to render such services; and
3. a valid surety bond filed with the FMC.
Important Types of Transactions that Contribute to Foreign Exchange Risks
The most important types of transactions that contribute to foreign exchange risks in international trade include the following:
Purchase of goods and services whose prices are stated in foreign currency, that is, payables in foreign currency
Sales of goods and services whose prices are stated in foreign currency, that is, receivables in foreign currency
Debt payments to be made or accepted in foreign currency
Protection Against Exchange Rate Risks
Shifting the Risk to Third Parties
Hedging in Financial Markets
Through various hedging instruments, firms could reduce the adverse impact of foreign currency fluctuations.
This allows firms to lock in the exchange rate today for receipts or payments in foreign currency that will happen at sometime in the future.
It is pertinent to underscore some salient points about hedging in foreign exchange markets:
Hedging is not always the most appropriate technique to limit foreign exchange risks
Hedging does not protect long-term cash flows
Forward market hedges are available in a very limited number of currencies
Hedging should not be used for individual transactions
Types of Hedges:
Spot and Forward Market Hedge
As previously noted, a spot transaction is one in which foreign currencies are purchased and sold for immediate delivery, that is, within two business days following the agreed- upon exchange date.
Unlike hedging in the spot market, forward market hedging does not require borrowing or tying up a certain amount of money for a period of time.
This is because the firm agrees to buy or sell the agreed amount of currency at a determinable future date, and actual delivery does not take place before the stipulated date.
Swap
A swap transaction is a simultaneous purchase and sale of a certain amount of foreign currency for two different value dates.
The central feature of this transaction is that the bank arranges the swap as a single transaction, usually between two partners.
Swaps are used to move out of one currency and into another for a limited period of time without the exchange risk of an open position.
Shifting the Risk to the Other Party
Invoicing in One’s Own Currency
Risks accompany all transactions involving a future remittance or payment in foreign currency.
If the payment or receipt for a transaction is in one's own currency, the risk arising from currency fluctuations is shifted to the other party.
Invoicing in Foreign Currency
In the event that the agreement stipulates that payment is to be made in foreign currency, it is important for the exporter
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