Внешнеторговый международный контракт: типовой образец, пример контракта, экономические и юридические аспекты. Денис Шевчук
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It should also be noted that the 1980 Vienna Convention does not set any rules to govern the choice of applicable law.
Следует также отметить, что Венская конвенция 1980 года не регулирует выбор применимого права.
Check Questions
Is the 1980 Vienna Convention imperative or dispositive in character?
The 1980 Vienna Convention. What is the sphere of its application?
How many countries have signed the 1980 Vienna Convention?
Does this Convention set any rules to govern the choice of law?
WORLD-WIDE CONTRACTUAL STANDARDS
INCOTERMS,THE ICC OFFICIAL RULES FOR THE INTERPRETATION OF TRADE TERMS
TERMS THE WORLD TRADES BY
In every international trade transaction certain questions must be answered:
Who will arrange and pay for the transfer of goods from the seller’s works/ factory/warehouse to the buyer’s premises?
Who will bear the risk if these operations cannot be carried out?Who will bear the risk of loss of or damage to the goods in transit?
The various national laws, of course, contain various solutions for each of these questions. However, one party to an international sales contract may hesitate to subject itself to the national laws and procedures of the other. This is why international commercial terms, or standardised trade terms, have been developed, notably by the International Chamber of Commerce (ICC) – the Incoterms.
With Incoterms, the ICC set out to overcome the problems of conflicting national laws and interpretations by establishing a standard set of trade terms and definitions that offer neutral rules and practices. They have been decided upon after thorough discussions between experts representing businessmen from all over the world.
The Incoterms were first published in 1936, since then they have been regularly updated to keep pace with the development of international trade. Amendments and additions were made in 1953, 1967, 1976, 1980, 1990 and presently in 2000.
In view of the changes made to Incoterms from time to time, it is important to ensure that where the parties intend to incorporate Incoterms into a contract of sale, an express reference be made to the current version of Incoterms. The absence of such reference may result in disputes as to whether the parties intended to incorporate as part of their contract that version or an earlier version.
The Incoterms become part of a sales contract if seller and buyer so agree by simple reference to one of the trade terms expressly stating that the contract should be interpreted according to a particular Incoterm, e. g. C.I.F. Incoterms 2000.
It should be noted that special provisions in individual contracts will override anything provided in Incoterms. Parties may adopt Incoterms as a general basis of a contract but may also specify variations or additions to fit a contract to a particular trade or to particular needs. In this context, it is important to bear in mind that Incoterms are premised on the seller’s minimum liability. In an individual contract, the buyer therefore may wish to increase the seller’s obligation.
It should also be kept in mind that reference to a particular Incoterm is not sufficient to determine the full legal relationship between parties to a contract of sale. Matters such as breach of contract and its consequences, as well as the difficult problem of ownership of goods, are outside the scope of the trade terms.
The scope of Incoterms is limited to matters relating to the rights and obligations of the parties to the contract of sale with respect to the delivery of goods sold. Their basic purpose is to explain how responsibility, cost and risk should be divided between the parties in connection with the delivery of goods from seller to buyer.
To establish this division, the point at which goods are considered delivered from seller to buyer under the respective terms must be indicated. Normally, at this point (the "critical point"), the obligation to arrange for further transport of goods and to assume further costs and risks is transferred from seller to buyer. Under some trade terms, the "critical points" for the transfer of costs and risks do not coincide.
There are two particular misconceptions about Incoterms:
they are frequently misunderstood as applying to a contract of carriage rather than to a contract of salethey are sometimes wrongly assumed to provide for all the obligations which parties may wish to include in a contract of sale.
These misconceptions are very common although the ICC has always stressed that Incoterms deal only with the relation between sellers and buyers under a contract of sale, and, moreover, only do so in some particular and very distinct respects.
Incoterms 2000
Incoterms 2000 bring the official ICC rules for the interpretation of the most commonly used trade terms in line with the current international trade practices:
recent spread of customs-free zonesincreased use of electronic communications in business transactionschanges in transport techniques.
In their 2000 revised version, Incoterms concentrate on the thirteen most important trade terms and offer a simpler and clearer presentation of them. The use of different expressions to convey the same meaning has been avoided. Moreover, whenever possible, the same expressions as appear in the 1980 Vienna Convention on Contracts for the International Sale of Goods have been used.
The following is the complete list of Incoterms 2000 in their abbreviated form, full form and in a Russian translation.
As is clearly seen from the list, the terms are grouped in four basically different categories:
• the «E» term whereby the seller simply makes the goods available to the buyer at the seller’s own premises. This term represents the minimum obligation for the seller (and the maximum obligation for the buyer).
• the «F» terms FCA, FAS, FOB whereby the seller is asked to deliver the goods to a carrier appointed by the buyer.
• the «C» terms CFR, CIF, CPT, CIP whereby the seller contracts for carriage without taking the risk of loss or damage to goods or additional СКАЧАТЬ