Inspection and claim in international trade goods dispute
- Application of law.
The principles of the application of the United Nations Convention on international sales contracts mainly include the following points: first, the automatic application rule, that is, the automatic application of the Convention when the parties to the convention do not agree to exclude it; Secondly, the parties agree on exclusion rules, that is, the parties can expressly exclude the application of the Convention; Third, the Convention takes precedence over the rules of domestic law; Fourth, other international agreements have the priority to apply the rule, that is, if there is a special agreement on quality inspection in the country where the parties are located, the agreement shall prevail over the application of the Convention. For details, please refer to Article 4 of the “several issues that should be paid attention to in implementing the United Nations Convention on Contracts for the international sale of goods” issued by the Ministry of foreign trade and economic cooperation.
Lawyers should pay attention to the application of law when drafting Foreign-related Contracts for the parties. First, we should understand its applicable rules in China; Secondly, choose the law you know, including domestic law or extraterritorial law; Thirdly, the application of the selected law should be able to protect the legitimate interests of the parties in the event of disputes in the future. For example, regarding the issue of compensation for breach of contract, the provisions on liquidated damages in China are compensatory and not punitive. Punitive damages can be agreed in American law. If lawyers feel that the application of American law can better protect the interests of the parties, they should make a choice. Only by choosing the right application of law can disputes be handled correctly.
In the processing of inspection and claim of international trade goods, each case is judged based on the evidence submitted at the time of prosecution, and there is no commonness. Quality disputes in international trade are caused by many reasons, such as the application of contractual standards or mandatory standards. Generally, when such disputes are involved, the lawyer as the observant party should provide two pieces of evidence: first, evidence of quality problems to prove that the other party’s breach of contract is tenable; Second, evidence of losses caused by the other party’s breach of contract. These two pieces of evidence complement each other, because if the evidence that can prove the quality problem is sufficient and effective, but the non-compliance party cannot provide effective evidence or evidence to the extent that the court can judge to prove the loss caused by breach of contract during the claim, the court will not generally support the claim for such loss.
In the trial practice, we think it is worth paying attention to the following issues: the standards for the inspection of goods by both parties need to agree on the time, place, mode of inspection, and effectiveness to both parties. For the inspection method, it is suggested to agree to find an independent third-party inspection institution, which should be neutral and preferably have a high reputation internationally, such as SGS;
The contract should be detailed. In the past, the contract terms provided by the plaintiff and the defendant were very simple and rough, and some even did not sign a written contract; In contrast, in foreign countries, the contract between the buyer and the seller often has dozens or even hundreds of pages, listing everything in detail. Although it seems cumbersome, it avoids many unnecessary troubles after disputes arise. In commercial transactions, the court believes that both parties have equal trading capacity, and the prior agreement of both parties should be meticulous.
The role of expert witnesses. The testimony of the expert witness is only a personal analysis of the facts of the case according to his knowledge system. At present, the proportion of using expert witnesses in foreign-related cases in China has been on the rise.
- Objection Period for cargo claim
Article 39 (1) of the Convention stipulates that the seller must notify the seller of the non conformity of the goods within a reasonable time after discovering or should have discovered the non conformity, stating the form of the non conformity. Otherwise, the seller loses the right to claim the non conformity of the goods. Article 40 stipulates that if the non conformity of the goods refers to the fact that the seller knew or could not have known and did not inform the buyer, the seller has no right to invoke the reasonable time limit provided in Article 39 to defend. This reasonable period of time can be agreed in the contract, so attention should be paid to the specific agreement on the deadline of this period.
Evidence of losses caused by the other party’s breach of contract. Please pay attention to the following points: negotiate with the defaulting party (telephone, email, fax, etc.) or provide the opinions on handling in advance in the contract; Inform the other party of its intention to deal with; The handling method shall be reasonable and written; Payment voucher is required; The breaching party shall be clearly indicated for the above matters. In this way, when the observant party disposes of the goods to reduce losses, if there is a market price difference and the other party does breach the contract, the court will generally support the price difference. All the evidence can not be complete and perfect. It doesn’t matter if there are flaws in the evidence, but it must form a chain of evidence and reach a high probability before the court can support it.