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1、Chapter NineChapter NineInspection,Claim,Force Inspection,Claim,Force MajeureMajeure and Arbitration and ArbitrationLearning objectiveslAfter reading this chapter,you should be able toexplain ways to stipulate the place and time of inspection within the contract understand the conditions for breach
2、of contract and settlement of claimsdescribe ways of stipulating claim clauses in a sales contractbe aware of the consequences of force majeure eventsexplain ways to stipulate force majeure clauses in a sales contractrealize the importance of arbitration in the settlement of disputes and claimsbe aw
3、are of the issues to be considered in the negotiation of arbitrationdescribe the ways of stipulating an arbitration clause in a sales contract 2SEIB of GDUFS9.1 Commodity InspectionlCommodity inspection is the inspection conducted by an authorized third party to testify whether the quality,quantity,
4、weight,package,etc.are the same as those specified in the contract.3SEIB of GDUFS9.1.1 Time and place of inspection lInspection at the factory or at the port of shipment(also shipping quality and weight)The goods are inspected at the factory or at the port of shipment Inspection results considered f
5、inal for the delivery of the goods by the sellerBuyer can re-inspect the goods but the result will not serve as the basis for compensationMore favorable to the seller 4SEIB of GDUFS9.1.1 Time and place of inspectionlInspection at the port of destination(also landed quality and weight)The goods are i
6、nspected at the port of destination Inspection results considered final for the delivery of the goods by the sellerBuyer can claim for compensation in the case of discrepanciesMore favorable to the buyer 5SEIB of GDUFS9.1.1 Time and place of inspectionlInspection at the port of shipment and re-inspe
7、ction at the port of destination The goods are inspected at the port of destination and re-inspected by the buyer at the port of destinationInspection results issued at the port of shipment are used as one of the documents for the seller to settle payment Inspection results issued at the port of des
8、tination serve as the basis for the buyer to claim for compensation in the case of discrepanciesFavorable to both the seller and the buyer 6SEIB of GDUFS9.1.2 Inspection BodieslTypes of inspection bodyGovernmental inspection bodieslOwned and supervised by governmentslSpecialize in inspection of part
9、icular commodities or those subject to mandatory inspection leg.The Food and Drugs Administration(FDA)in USA,The State Administration for Commodity Inspection(SACI)in ChinaNon-governmental inspection bodieslPrivately owned lEnjoy the same legal status lEg.Societe Generable De Surveillance S.A.(SGS)i
10、n Swiss,Lloyds Surveyors in Britain,Underwriters Laboratories(UL)in USA.7SEIB of GDUFS9.1.2 Inspection BodieslTasks of the inspection bodyTo inspect goods for import and exportlStatutory inspection:for mandatory inspectionlNon-statutory inspection:made on a random basisTo exercise supervision and co
11、ntrol over the inspection To accept the entrustment for surveying services and issue certificates of survey8SEIB of GDUFS9.1.3 Inspection StandardlStandards Mandatory inspection:subject to the standards as specified in the Law and the RegulationsFor others,subject to the standards agreed upon in the
12、 trade contractslIf there is contradiction between the standards in the Law and the Regulations and those in the contracts,subject to the higher one.lIf the standards are not specified in the Law and the Regulations or in the contract,subject to the standards of the manufacturing country,or relevant
13、 international standards or the standards designated by the state inspection agency.9SEIB of GDUFS9.1.4 Inspection CertificatelInspection Certificate of QualitylInspection Certificate of Weight or QuantitylInspection Certificate of ValuelInspection Certificate of Origin lSanitary Inspection Certific
14、ate lVeterinary Inspection Certificate lDisinfection Inspection Certificate lInspection Certificate on Damaged Cargo 10SEIB of GDUFS9.1.5 Inspection clause lThe inspection clause usually contains stipulations onthe inspection rightthe time and place of inspection or re-inspectionthe inspection bodyt
15、he inspection items and the inspection certificates.11SEIB of GDUFS9.1.5 Inspection clause Example12SEIB of GDUFS9.2 Disputes and Claims 9.2.1 DisputeslMain reasons for disputes breach of contract by the seller l fails to deliver the goodsl fails to present required documents breach of contract by t
16、he buyerl fails to open L/C l fails to accept the goodsl fails to dispatch the vessel(FOB)breach of contract by both partiesl misunderstands contract stipulations13SEIB of GDUFS9.2.2 Claims lClaim:demand made by one party to another for a certain amount of compensation on account of a loss sustained
17、 through its negligence lTypes of claim claim regarding selling and buying claim regarding transportation claim concerning insurance 14SEIB of GDUFS9.2.3 Claim clause lDiscrepancy and Claim Clause(for most transactions)Main informationlRelevant stipulations or proofslRelevant inspection authoritativ
18、e bodylPeriod for lodging claimsWays to be settled l making a refundl compensating for direct losses or expensesl selling the goods at lower price l replacing the defective goods 15SEIB of GDUFS9.2.3 Claim clause Example16SEIB of GDUFS9.2.3 Claim clause lPenalty Clause(for transactions in large quan
19、tity or with large mechanical equipment)“Should the Buyers for their own sake fail to open the Letter of Credit within the time stipulated in the contract,the Buyers shall pay a penalty to the Sellers.The penalty shall be charged at the rate of 0.5%of the amount of the letter of credit for every ten
20、 days of delay in opening the letter of credit,however,the total 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 calculation of penalty.The penalty shall be the sole compensa
21、tion for the damage caused by such delay.”Example17SEIB of GDUFS9.3 Force Majeure 9.3.1 Force Majeure Clause Scope of Force Majeure EventslStipulation in a general wayWith the wording“force majeure events”onlyNot specific,easily leading to different interpretation18SEIB of GDUFS9.2.3 Claim clause lS
22、tipulation in a specific wayList all possible force majeure events in detail But may leave out other details19SEIB of GDUFS9.3.1 Scope of Force Majeure Events lStipulation in a synthesized wayList some of the possible force majeure events in detail Add such wording as“or other cause of Force Majeure
23、”in order not to miss the other possible causes20SEIB of GDUFS9.3.1 Force Majeure Clause Notification:lNotify the buyer right after the accidents the following the force majeure event its effect on their ability of performing the contract lOtherwise,the seller will be held responsible for the loss o
24、r damage.Issuance of the certificateslAn effective certificate concerning the actual occurrence of the force majeure event is required;otherwiselThe seller will still be held responsible for the loss or damage.21SEIB of GDUFS9.3.2 Consequences of Force Majeure Events Postponement of the contract lWh
25、en the performance of the contract is delayed temporarily lContract shall be resumed after the force majeure event Termination of the contractlWhen the performance of contract is impossible lone of the party who suffers the force majeure event may ask for the termination of the contract 22SEIB of GD
26、UFS9.4 Arbitration 9.4.1 Methods of dispute settlement negotiation mediation arbitration litigation Most favorableLeast favorable23SEIB of GDUFSlDifference between arbitration and mediation ArbitrationlInvolving an impartial third partylLike an less formal court,the arbitrator hears evidence and mak
27、es a decision lThe decision is final mediationlInvolving an impartial third partylThe mediator gives suggestions to the solution of disputes,butlThey do not reach a solution unless all sides agree.9.4.2 Differences among ways of dispute settlements24SEIB of GDUFSlDifference between arbitration and l
28、itigation the way to submit arbitration or litigationlarbitration:submission to arbitration made on the agreement of both parties in advancellitigation:submission to litigation made unilaterally by one of the parties the appointment of arbitrator or judge larbitration:appointed by the parties themse
29、lves and the third appointed by the arbitration institutionllitigation:appointed by the government9.4.2 Differences among ways of dispute settlements25SEIB of GDUFSlDifference between arbitration and litigation the effectiveness of an award or verdict larbitration:award is final and binding on both
30、parties with no right given to revision before a law courtllitigation:verdict is not final,ie.If one party refuses,he can retain the right to appeal to a higher courtArbitration is simpler,less costly and time-consuming and more flexible,therefore is more favorable in dispute settlement.9.4.2 Differ
31、ences among ways of dispute settlements26SEIB of GDUFSlApplying for arbitration Application shall be made in written form l the name address of the claimant and the claimeel the arbitration agreementl the facts of the disputesl the claimants claim and l the facts and evidence of the claimApplication
32、 shall be submitted to the Secretariat of the Arbitration Commission The arbitration fee shall be paid in advance to the Arbitration Commission9.4.3 Arbitration procedure27SEIB of GDUFSlForming arbitration tribunal sole-arbitrator tribunal lonly one arbitrator involvedlBoth parties jointly appoint o
33、r jointly authorize the chairman of the arbitration body to appoint.collegiate tribunall three arbitrators involvedl The claimant and claimee each appoint an arbitratorsl The third one either be jointly appointed by both parties or appointed by the arbitration body.9.4.3 Arbitration procedure28SEIB
34、of GDUFSlHearing an arbitration case oral hearing l A date for oral hearing shall be fixed in advancel Communicate to the parties concerned 30(in foreign-related cases)or 15 days(in domestic cases)before the date for oral hearing the omission of an oral hearinglOmission of an oral hearing shall be m
35、ade at the request of the parties or with the consent of the parties;andl be approved by the arbitration tribunal.If the oral hearing is omitted,an award shall be made based on the documents only.9.4.3 Arbitration procedure29SEIB of GDUFSlIssuing an award Time for the issuancel for arbitration witho
36、ut oral hearing:within 9 months from the date of the formation of arbitration tribunal l for arbitration based on oral hearing:within 30 days from the date of the oral hearing The date of issuance is the date on which the award becomes effective.The arbitration award is final and binding upon both p
37、arties.9.4.3 Arbitration procedure30SEIB of GDUFSlSetting aside an award In case of inconformity in the statutory procedure in the award,for examplel no arbitration clause in the contract,orl no subsequent written arbitration agreement included,orl the appointment of an arbitrator or the formation o
38、f an arbitration tribunal not in consistent with arbitration rulesthe party concerned can apply for setting aside the arbitral award.9.4.3 Arbitration procedure31SEIB of GDUFSlEnforcing an awardIf an award is not executed within time limit specified,it can be applied to the competent court for enfor
39、cement.In applying for enforcement,one party shall submit l a written application for enforcementl the arbitration agreement l the original copy of arbitral award.9.4.3 Arbitration procedure32SEIB of GDUFSlarbitration feepaid in advance by the claimant when applying for arbitrationlactual arbitratio
40、n costcost related to making investigations or collecting evidence,engaging expert to make appraisal,etc.The arbitration tribunal shall decide:l how much is the costl which party shall pay 9.4.4 Arbitration Costs33SEIB of GDUFSlAn arbitration clause shall be regarded as existing independently and se
41、parately from the other clauses of the contract.lAn arbitration agreement is part of the contract,but existing independently and separately from the other clauses of the contract.lAn arbitration clause or an arbitration agreement expresses the willingness of the parties to submit the disputes to arbitration.lContent:place of arbitration,arbitration body,applicable arbitration rules,arbitration ward,etc.9.4.5 Arbitration Clause34SEIB of GDUFS9.4.5 Arbitration Clause35SEIB of GDUFS