In order to enable more lawyers to participate in the legal business of international trade export business and better safeguard the legitimate rights and interests of the client, the International Trade Business Committee of the Shanghai Lawyers Association formulates this guide

2025/07/0608:33:00 hotcomm 1481

In order to enable more lawyers to participate in the legal business of international trade export business and better safeguard the legitimate rights and interests of the client, the International Trade Business Committee of the Shanghai Lawyers Association formulates this guide - DayDayNews

Operational Guidelines for Lawyers for Export Trade (2018)

Chapter 1 General Provisions

Section 1 Purpose and Concept

1.1 Purpose

In order to enable more lawyers to participate in the legal business of international trade export business and better safeguard the legitimate rights and interests of the client, the International Trade Business Committee of Shanghai Lawyers Association formulates this guideline based on the summary of lawyers’ experience in handling export trade business litigation and non-litigation business. These guidelines are not mandatory or normative provisions and are only for reference by lawyers when handling related business. This guide focuses on non-litigation business in export trade, especially on lawyers' participation in negotiations, drafting documents, and handling breach of contract matters. This guideline has a strong reference effect on lawyers for handling export trade litigation and arbitration business.

1.2 Concept definition

(1) Export trade contract: a contract for Chinese enterprises to sell goods abroad or Hong Kong, Macao and Taiwan.

(2) Seller: also known as the exporter, the party selling goods in the export trade contract.

(3) Buyer: also known as importer (Importer), the party who purchases goods and pays the price in the export trade contract.

(4) Goods: The subject matter of an export trade contract. The agreements involving goods in the export trade contract are generally the name, quality, specifications, origin, packaging and quantity of the goods. The goods referred to in these guidelines are tangible goods.

(5) International Sales of Goods : refers to a sales contract for goods concluded between trading entities in different countries, including export trade contracts and other forms.

(6) CISG: that is, " United Nations Convention on the International Sale of Goods Contracts", formulated by United Nations Commission on International Trade Law and officially came into effect on January 1, 1988.

(7) Customs encoding (also known as HS encoding): refers to the 6-digit product encoding under the World Customs Organization coordinated encoding system. Countries expand sub-coding according to their actual situation. my country adopts a 10-digit encoding system.

(8) Price term: also known as delivery conditions and price conditions. It is a term used in international trade to indicate the composition of the goods, the responsibilities that both buyers and sellers should bear, the costs and risks borne by them, and the transfer of ownership of the goods. The "HTM4 International Trade Terms Interpretation " (abbreviation: INCOTERMS) formulated by International Chamber of Commerce (hereinafter referred to as "ICCh") has been widely accepted and used by most countries. The current version is 2010 (hereinafter referred to as "INCOTERMS 2010").

(9) Payment terms: also known as payment terms, it includes payment methods, payment nodes, etc.

(10) Commercial Invoice (INVOICE): It is a sales list issued by the seller to the buyer. The commercial invoice has no unified format. The content generally includes: name of the issuer, name of the receipt, invoice number, contract number, invoice date, shipment location, mark, name of the goods, specifications, price, quantity, total price, etc.

(11) sea bill of lading (B/L): a certificate issued by the carrier or multimodal transporter to prove that the sea cargo transportation contract cargo has been received or loaded by the carrier, and the carrier guarantees the delivery of the goods to the designated consignee. A sea bill of lading is a property certificate and a transportation contract.

(12) Contract Law : refers to " Contract Law of the People's Republic of China ", implemented on October 1, 1999.

(13) UCP: that is, " documented letter of credit uniform practice ", formulated and drafted by the ICC. It is the most authoritative and influential international business practice in the field of letter of credit . The current version is UCP600.

1.3 Basic principles for lawyers to handle export trade legal business

1.3.1 Export trade business is quite professional and foreign-related, and involves legal fields including civil law, maritime law , insurance law, bills law , international private law and international practices. Lawyers should have relatively comprehensive legal expertise and be able to use the transaction language of contracts and parties more proficiently.

1.3.2 Perform your duties diligently and responsibilities.The transaction amount of the export trade contract is large and the performance process is complex. Lawyers should actively and actively protect the interests of the client, and think about the parties from the perspective of preventing risks and minimizing risks to the greatest extent in every link. In the process of providing services, lawyers should pay attention to keeping the parties' business secrets, not revealing transaction information, and putting the interests of the principal first.

1.4 Prerequisites for lawyers to handle export trade legal business

Before lawyers to handle export trade legal business, they should sign the following contract with the principal according to the needs of the parties and the entrusted matters of the Lawyer Law and the relevant provisions of the Contract Law:

(1) Permanent Legal Advisory Contract

This contract can be used as the contract basis for lawyers to provide the principal with daily legal consultation, written advice, and oral advice.

(2) Special legal service contract

For some highly targeted or highly staged businesses, such as drafting contracts, litigation, arbitration, etc., lawyers can sign special legal service contracts with the client.

Section 2 Existing legislation and related provisions

1.1 Export trade involves a variety of laws and practices, and the rights and obligations of the parties are subject to different restrictions in different countries. Taking into account the actual situation, this guide will use the United Nations Convention on the Contracts for the Sale of Goods (hereinafter referred to as "CISG") and the China's Contract Law as the main basis for this guide.

1.1.2 Although China's Contract Law draws on a lot of CISG terms or spirit, CISG does not involve issues such as whether the contract is valid, the statute of limitations, the transfer of contracts, and the transfer of ownership. These issues still need to be resolved by domestic laws.

Chapter 2 Matters to be noted when lawyers draft or review export trade contracts

Section 1 General provisions

1.1 Export trade contracts have two forms: oral and written. When China joined CISG, it reserved the international trade contract in oral form, but after August 1, 2013, China no longer requires that international sales of goods must be in written form.

1.2. Lawyers should recommend that the client sign a formal written contract. The export trade contract does not have a fixed text format. The International Chamber of Commerce International Sales Demonstration Contract (hereinafter referred to as "ICC") issued by the International Chamber of Commerce (hereinafter referred to as "Demonstration Contract") is highly exemplary and is specifically applicable to transactions based on CISG, but its focus is limited. Lawyers should make specific arrangements in the contract based on the transaction characteristics when drafting or reviewing the export trade contract.

1.3 The implementation of an export trade contract generally involves the following links: Conclusion of a contract - Preparation of goods - Shipping of goods - Conversion of foreign exchange - Receiving of foreign exchange and writing off. Many export trade contract disputes are caused by unclear agreement between the two parties. During the performance process, if both parties make changes to the contract, they should be determined in writing, otherwise the party claiming that the contract terms have been changed will be burdened with the burden of proof.

1.4 The export trade contract shall contain the following contents:

(1) Buyer and seller: including the complete name of each party, registered address, business license number, name of the legal representative or authorized representative, telephone number, fax, email address and other information.

(2) Goods: information on the name, quality, specifications, quantity, packaging and origin of the goods.

(3) Price: currency, unit price and total price, etc.

(4) Price terms: the type of term and the name of the rule to which the term applies.

(5) Delivery arrangement: delivery date and location.

(6) Cargo inspection arrangement

(7) Payment conditions

(8) Document requirements

(9) Transfer of ownership

(10) Contract interpretation and disputes applicable laws and jurisdictional terms

(11) Other agreements, such as outsourcing prohibits

Section 2 Export trade contract

1.1 Transaction subject and signing

0 The buyer in the export trade contract applicable to these guidelines shall be an enterprise or individual that is not China or non-China Hong Kong, Macao and Taiwan.

1.1.1 Seller

1.1.1.1 Seller should be a company registered in mainland China.

1.1.1.2 In practice, the seller often entrusts an agent to handle the export business and sign a contract, that is, the "export agent".Due to policy reasons, import and export enterprises as agents will export goods in the form of "fake self-operated and real agents", resulting in the "seller" in the export trade contract only appears as an agent, but does not reflect the real seller. This legal relationship constitutes the "hidden name agent" in the Chinese Contract Law to the outside world, which is a high incidence of disputes; lawyers should recommend that the client follow the "explicit nameism" of the mainland legal system and truthfully disclose the subject information and agency relationships of the agent and the principal in the export trade contract. In terms of applicable law, CISG does not regulate agency legal issues and are generally handed over to the court that accepts the dispute or the arbitration institution for handling in accordance with domestic laws.

1.1.2 Buyer

1.1.2.1 Buyer is generally a company or individual registered outside mainland China or Hong Kong, Macao and Taiwan. The lawyer should recommend that the client investigate or understand the buyer's qualifications and background, for example, require the buyer to provide the business registration information or personal passport information of the country where he is located. There are many foreign companies with the same name. If possible, they should write a business license or business registration certificate number to be identified.

*1 Article 403 of the Contract Law When the trustee enters into a contract with a third party in his own name and the third party does not know the agency relationship between the trustee and the principal, the trustee fails to perform his obligations to the principal due to the third party's reasons, the trustee shall disclose the third party to the principal, and the principal may therefore exercise the trustee's rights over the third party, except if the third party knows that the principal will not enter into a contract when the third party enters the contract with the trustee. If the trustee fails to perform his obligations to the third party due to the principal's reasons, the trustee shall disclose the principal to the third party. Therefore, the third party may choose the trustee or the principal as the counterparty to claim his rights, but the third party shall not change the selected counterparty. If the principal exercises the trustee's rights against the third party, the third party may assert his defense against the trustee from the principal. If a third party selects the principal as its counterparty, the principal may assert his defense against the trustee and the trustee’s defense against the third party.

1.1.3 Standard for determining the place of business

1.1.3.1 CISG and Chinese laws have no unified definition of this. Generally, the court or arbitration institution that accepts the dispute will make judgments based on the circumstances of different cases. When the application of law is not agreed in the contract, the addresses of both parties indicated in the contract will be defaulted to the place of business, which is the most basic condition for determining whether CISG can be applied; if both places of business are located in CISG contracting party , and the laws of that country point to the application of CISG, CISG shall apply to the contract.

1.1.4 Contract Signing

1.1.4.1 Many export trade contracts are not signed with the official seal, but are signed or signed with the special contract seal and business brochure, which does not affect the validity of the contract.

1.1.4. Many export trade contracts cannot be signed opposite sides from both sides. The following signing methods are more common: fax or email sending scanned copies stamped with each other. In this case, the party claiming that the contract is established by is burdened with the burden of proof for the establishment of the contract. Lawyers should recommend that parties with conditions use electronic signatures to establish a contract; parties without conditions should properly keep the mail between the two parties and make a written description of the recipient, matters that need to be handled or confirmed in the main text of the mail, rather than sending the attachment to the other party to make a matter.

1.2 Transaction content

1.2.1 Item name

The name of the goods should be clear and clear, and the product name should be compared in Chinese and English. It is not recommended to list the customs code after the goods, because the extended codes of each country are not consistent. This can avoid excessive import tariff disputes caused by inconsistent with the customs code listed in the contract or disputes that affect the delivery time due to the need to go through additional customs supervision procedures due to import and export. If customs code must be written, the code reference basis must be indicated (such as TARIC, etc.).

1.2.2 Goods specifications

1.2.2.1 Goods specifications should be clear and have a basis for determination, rather than simple descriptions of first-level, second-level, A-level, B-level or model, model number, etc. When it comes to grade products, the standards on which the grade should be marked, such as: first-level soybean oil (GBXXXXX China National Standard).

1.2.2.2 If the specifications are unclear, according to CISG regulations, when the buyer does not notify the seller of the goods within the agreed time, the seller may determine the goods specifications by himself after performing the following procedures: the seller needs to determine the goods specifications according to the known buyer's requirements, inform the buyer of the specification details, and give a reasonable period for the buyer to clarify the specifications within the reasonable period. If the buyer does not reply, the seller's suggested specifications are binding.

1.2.2.3 If both parties trade on samples, they should seal the sample (Sealed Sample), and it is clear that the seal is used as the only basis or one of the only basis for determining the quality of the variety, so as to avoid the inconsistency between the seal and the terms of the contract.

1.2.2.4 "Quality or Specification Mobility Amplitude Terms" (also known as "Quality Tolerance") can be set for special products.

1.2.3 Quantity

1.2.3.1 Quantity clause is the basis for pricing, and no disputed statutory units of measurement should be used. Common units of quantity include: weight, area, number of pieces, length, area, volume, etc.

1.2.3.2 should have the short-lift clause (More or Less), including: 1) the range of short-lift (such as: plus or minus 5%), 2) the right to choose (such as: decided by the buyer or seller); 3) the price method for the short-lift part. If the seller delivers the goods less than the short-load clause is not agreed, it may be deemed to be a breach of contract; if the seller delivers the goods more than the goods, the buyer has the right to refuse to accept them.

It should be noted that if there are words such as "about" (approximately) and "approximately" before the quantity, it is a situation where the agreement is unclear, which can easily cause disputes and is not easy to adopt. However, when the transaction method is a letter of credit, according to UCP600, it should be interpreted that the relevant amount or quantity or unit price is allowed to increase or decrease by no more than 10%; when the letter of credit does not specify the quantity of goods in the form of the number of packaging units or the number of goods itself, the quantity of goods is allowed to increase or decrease by 5%, as long as the total withdrawal amount does not exceed the amount of the letter of credit.

1.2.4 Goods Packaging

1.2.4.1 Both CISG and China's "Contract Law" stipulate that the seller must pack or pack according to the method specified in the contract. If both parties do not agree, the seller shall provide a packaging method that is sufficient to protect the goods.

1.2.4.2 Common packaging methods include boxes, buckets, bags, bags, pallets, etc. The packaging methods for sea and air transportation are very different. If the transportation method is changed during the contract performance, the packaging method should be re-confirmed.

1.2.4.3 Identifying words or symbols will be brushed on the transportation packaging, commonly known as "mark". The content of the mark roughly includes: the abbreviation of the consignee, the destination port, the number of goods, the contract number, etc. The function of the mark is: it allows relevant personnel to most effectively identify the goods and ensure the safety of cargo transportation to the greatest extent. Please note that due to high losses in transportation of dangerous goods, fragile goods, and valuables, both parties should determine the content of the mark in advance.

1.2.4.5 Custom-branded packaging and neutral packaging, caution is required.

(1) Lawyers should note that when the product is licensed or the outer packaging needs to be marked with a designated trademark, they should fulfill their general review obligations to verify whether the trademark involves infringement and whether the buyer has obtained the corresponding authorization. Otherwise, the goods may be detained by the customs when exporting customs declaration.

(2) When using neutral packaging, since this type of goods can be easily replaced with the origin, the inspection rate during the export process is extremely high and there are different controls, which is very likely to affect the delivery time of the goods and must be applied with caution.

1.2.4.6 It is not easy to make general agreements in the export trade contract on whether the price of the goods includes the packaging cost and what mode of transportation the goods should be in compliance with. Packaging methods that do not comply with the agreement or poor packaging may be considered as breach of contract or belong to defective goods, thus losing the rights to obtain clean bill of lading and obtain insurance compensation.

1.2.5 Origin

1.2.5.1 Origin is the basis for customs statistics and taxation. Common certificates of origin : general certificate of origin (C/O) and general-purpose system certificate of origin (FORM A). The type of origin certificate that needs to be processed should be indicated in the contract.

(1) General Certificate of Origin (C/O): It is a proof document that proves that the goods enjoy normal tariff treatment of the importing country. Any country that exports the goods can apply for C/O.

(2) General Preferential System Certificate of Origin (FORM A): The purpose of proof that the goods are originated from a preferential tax rate country. When goods need to be exported to certain developed countries, a GPS certificate of origin is required.

(3) Certificate of origin issued in accordance with bilateral or multilateral agreements, such as: FORM E, etc.

1.2.5.2 Lawyers should note: When reviewing the contract, they should have a certain understanding of the policies of the importing country, the country of origin and the UN , such as: whether there is a trade ban. Exporting goods prohibited or restricted from import may cause the seller or buyer to be subject to civil or criminal sanctions from the relevant country. The ban is not limited to finished goods, but also includes sources of labor and ingredients. For example, the United States prohibits the import of Chinese seafood handled by North Korean workers; most countries prohibit the import of child labor or materials produced by prison factories.

* 2 Article 30 of "UCP600": Increase or decrease in the amount, quantity and unit price of letters of credit

a. When the term "approximately" or "approximately" is used in the term "approximately" or "approximately" the amount of letter of credit or the quantity or unit price specified in the letter of credit, it should be interpreted as allowing the relevant amount, quantity or unit price to increase or decrease in the amount or unit price not exceeding 10%.

b. When the letter of credit does not specify the quantity of goods in the form of the number of packaged units or the number of goods itself, the quantity of goods is allowed to increase or decrease by 5%, as long as the total withdrawal amount does not exceed the amount of the letter of credit.

c. If the letter of credit stipulates the quantity of goods and the quantity has been shipped in full, and if the letter of credit stipulates the unit price and the unit price has not been reduced, or if Article 30 b does not apply, even if partial shipment is not allowed, the amount of withdrawal is allowed to be reduced by 5%. If the letter of credit stipulates that there is a specific increase or decrease or the limit number is used to define the terminology mentioned in Article 30, paragraph a, the decrease does not apply.

1.3 Price

1.3.1 Price includes unit price and currency, which is determined by negotiation between buyers and sellers. Trading using soft coins (large exchange rate fluctuations and low traffic) is necessary to prevent trade fraud. To prevent foreign exchange risk , you can set the foreign exchange value preservation clause , that is, when the exchange rate floats more than N%, the price will change accordingly.

1.3.2 The transaction price of some bulk transactions or special goods may be subject to floating or tentative prices. This type of buyer with extremely good credit is generally applicable, but lawyers should make clear arrangements on how to determine the final price in the export trade contract.

1.3.3 Which party bears the bank handling fees? It should be agreed in advance.

1.4 Price term

1.4.1 Lawyers should note that INCOTERMS 2010 is a trade practice and can only be legally binding through domestic legislation or agreements. Therefore, the contract should state the basis for the application of the term. The standardized writing method is: CIF TOKYO, The trade term in this contract should be interpreted according to Incoterms 2010 (Translation: CIF Tokyo, trade terms under this contract should be applicable to INCOTERMS 2010). Otherwise, it may lead to the application of other interpretations of the term. INCOTERMS 2010 has the flexibility to give parties the right to change the validity of their terms through agreement.

1.4.2 INCOTERMS 2010 only adjusts the delivery of goods, handling of procedures, risk transfer, , cost risk and other matters, and cannot exhaust all matters of the contract. In order to avoid conflicts between the INCOTERMS2010 provisions and the contract terms, the basis should be specified in the contract in advance and it is recommended to give priority to the contract terms.

1.4.3 Term types

INCOTERMS In 2010, trade terms were divided into 2 categories, with a total of 11.

is applicable to any single mode of transportation or multiple modes of transportation

EXW (specified delivery point)

EX WORKS

Factory delivery

Handling

Factory delivery

Seller handes the goods to the buyer at the designated location to complete the delivery obligation; the seller has no loading obligation; the seller has no obligation to go through the export customs clearance procedures, but must provide the buyer with limited information on the export of goods.

FCA (specified delivery point)

FREE CARRIER

FREE CARRIER

Freight delivery carrier

Seller handes the goods to the buyer's designated carrier at the designated location, completes the delivery obligation, and the risk is transferred; the seller is obliged to go through the export customs clearance procedures.

CPTh (specified destination)

CARRIAGE PADI TO

Freight is paid to

Seller hand over the goods to the seller's designated carrier at the designated location, complete the delivery obligation, and the risk is transferred; the seller must sign a transportation contract and bear the costs required to transport the goods to the destination; the seller is obliged to go through the export customs clearance procedures.

CIP (specified destination)

CARRIAGE AND INSURANCE PAID TO

Freight and insurance premiums are paid to

Seller hand over the goods to the seller's designated carrier at the designated location to complete the delivery obligations, and the risk is transferred; the seller must sign a transportation contract and bear the costs required for the goods to be transported to the destination; the seller is obliged to go through the export customs clearance procedures; the seller must sign an insurance contract for the loss or damage of the goods during transportation and bear the costs.

DAT (transport terminal for designated port or destination)

DELIVERED AT TERMINAL

Transport terminal Delivery

Handling terminal Delivery

When the seller unloads the goods from the arrival of the cargo transport means and handes them over to the buyer for disposal, the delivery obligation will be completed, and the risk will be transferred; the seller must bear the expenses required to transport the goods to the aforementioned location; the seller is obliged to go through the export customs clearance procedures.

DAP (specified destination)

DELIVERED AT PLACE

Destination delivery

Destination delivery

When the seller delivers the goods that are still on the arrival of the transport tool at the designated destination and are ready to be unloaded, the delivery obligation will be completed and the risk will be transferred; the seller bears all costs for the goods to be transported to the aforementioned location.

DDP (specified destination)

DELIVERED DUTY PAID

Delivery after tax payment

Delivery after tax

At the designated destination, the goods that will be still on the arrival of the transport tool, but have completed import customs clearance and have been ready for unloading, will be delivered to the buyer for disposal, and the risk will be transferred; the seller shall bear all costs of transporting the goods to the aforementioned location, and shall be obliged to complete the export and import customs clearance of the goods, and shall bear all export, import tariffs, value-added tax, etc., and the obligation to handle all customs procedures.

is suitable for shipping and inland transport

FAS (specified port of shipment)

FREE ALONGSIDE SHIP

2

33334FREE ALONGSIDE SHIP

Ship side delivery

Ship side delivery

Ship side delivery at the designated port of shipment to the buyer, complete the delivery obligation, and the risk is transferred; the seller is obliged to go through the export customs clearance procedures.

FOB (specified port of shipment)

FREE ON BOARD

Delivery on ship

Seller loads the goods onto the ship designated by the buyer or delivers the goods delivered by obtaining the goods delivered on the ship. The risk of loss or damage of the goods is transferred when the goods are delivered on the ship; the seller is obliged to go through the export customs clearance procedures.

CFR (specified destination port)

COST AND FREIGHTht

Cost plus freight

Seller delivers the goods on the ship or delivers the goods by obtaining the goods delivered in such a way. The risk of loss or damage of the goods shall be transferred when the goods are delivered on the ship; the seller must sign a contract to pay the necessary costs and freight to transport the goods to the designated destination port; the seller is obliged to go through the export customs clearance procedures.

CIF

COST FREIGHT AND INSURANCE

Cost, insurance premium plus freight

Handling fee

Seller delivers the goods on the ship or delivers the goods by obtaining the goods that have been delivered in this way. The risk of loss or damage of the goods shall be transferred when the goods are delivered on the ship; the seller must sign a contract to pay the necessary costs and freight fees to transport the goods to the designated destination port; the seller is obliged to go through the export customs clearance procedures. The seller shall enter into an insurance contract for the loss or damage of the goods during transportation and bear the costs.

1.4.4 Risk transfer

INCOTERMS 2010 has abolished the "cargo crosses the ship's side" as the standard for risk transfer limit, and changed it to "the seller bears all risks until the goods are loaded on the ship, and the buyer bears all risks after the goods are loaded on the ship."Unless the parties specifically agree on the time of risk transfer in the contract, the time of risk transfer shall be determined based on the price terms adopted.

1.4.5 Select the term

When selecting the term, the mode of transportation should be fully taken into account. FAS, FOB, CFR, and CIF are only applicable to sea and inland transport; if the mode of transportation is changed during the contract performance, such as sea freight to air freight, the trade term should be changed accordingly, such as: "FOB designated shipping port" should be changed to "FCA Airport Delivery".

1.4.6 Term deformation

Term deformation (such as FOB airport delivery) will not cause the agreement to be invalid, but will cause the agreement to be unclear on the risk transfer location and cost burden point of both parties. If the deformation term is used, it is necessary to make corresponding agreements on the expenses and risks.

1.4.7 INCOTERMS 2010, CISG, China's "Contract Law"

A dispute arises in the export trade contract, which will result in the situation where the trade terms apply to INCOTERMS 2010, and the contract terms apply to CISG and China's "Contract Law". What lawyers need to note is that clear agreements should be made in the contract regarding the scope and effectiveness of the three. If no agreement is made, at least no major conflicts should arise. If a change to the contract is made, the overall situation should also be considered and the corresponding agreement should be adjusted.

1.5 Delivery

1.5.1 Delivery time (TIME OF DELIVERY)

1.5.1.1 Delivery time refers to the period when the seller delivers the goods to the buyer or carrier in accordance with the contract. "Shipment" means loading goods onto a designated vehicle or warehouse. According to CISG regulations, the seller must deliver the goods in accordance with the provisions of the contract and convention, hand over all documents related to the goods and transfer ownership of the goods. Therefore, the delivery referred to in CISG includes two links: "delivery goods + handover documents". Before the seller delivers the property rights certificates such as transportation documents, the seller's delivery obligation is not completed. Lawyers should note that the concepts of shipment and delivery cannot be confused.

* 3 CISG Article 30: The seller must deliver the goods in accordance with the contract and this Convention, hand over all documents related to the goods and transfer ownership of the goods.

1.5.1.2 The main types of delivery time

(1) clearly stipulates the delivery date and the delivery date of a certain year, month and day. According to CISG requirements: if the contract stipulates a date, or the date can be determined by the contract, the seller shall deliver the goods on that date; if the seller delivers the goods before the time specified in the contract, the buyer has the right to refuse to accept the goods. Only in certain circumstances will the buyer have the obligation to accept and keep the goods for the benefit of the seller. But even if the buyer collects the goods, he or she has the right to ask the seller to compensate for his or her losses.

* 4 CISG Article 33: The seller must deliver the goods on the following dates: (a) if there is a date in the contract, or a date that can be determined from the contract, the goods shall be delivered on that date; (b) if there is a period of time in the contract, or a period of time in the contract, unless the circumstances indicate that a date should be selected by the buyer, the goods shall be delivered at any time in that period of time; (c) if there is a period of time in other cases, the goods shall be delivered within a reasonable time after the conclusion of the contract.

* 5 CISG Article 37: If the seller delivers the goods before the delivery date, he may deliver any missing parts or make up for the insufficient quantity of the goods delivered before that date, or deliver to replace the goods delivered that are not in compliance with the same requirements, or remedy for any circumstances in the delivered goods that are not in compliance with the same requirements, but the exercise of such rights shall not cause the buyer to suffer unreasonable inconvenience or unreasonable expenses. However, the Buyer reserves any right to claim damages as provided in this Convention

(2) is limited to delivery within a certain period and may be at the Seller's discretion to the date of delivery.

(3) stipulates that the delivery date can be determined by the seller at the discretion of the delivery date within several days after receiving the letter of credit or receiving the prepayment of .

It should be noted that descriptions such as "shipping immediately" and "shipping as soon as possible" are unknown. When the transaction method is a letter of credit, the bank will not dispose of it, resulting in the risk of negotiating .

1.5.2 Delivery location

Delivery location is the place where the seller handed the goods to the buyer or carrier as agreed, usually including the port of shipment, the place of shipment and the port of destination or destination.The delivery location is associated with trade terms, for example, under the FCA terminology, the delivery location is the buyer's designated carrier (location). When choosing a delivery location, we should consider whether the delivery location is a region where the Chinese government does not allow trade, whether the destination is a duplicate name, whether the destination port can be directly reached, and whether it must be transferred, etc., and have a certain understanding of the transportation mode of the goods from the export place to the import place.

1.5.3 Batch shipping

Batch shipping refers to whether the goods under a contract can be shipped in batches. If batch shipment is allowed, clear and specific provisions must be made in the contract.

1.5.4 Arrangements for delayed delivery

To prevent possible delayed delivery, both parties shall make prior arrangements or agreements in the contract. In the event that the contract has not been arranged, the liability can only be determined according to the applicable law. CISG allows the buyer to declare the contract invalid in the event of breach of in the event of . In the event of a fundamental breach of contract, the Buyer shall give the Seller a reasonable grace period to continue performing the contract or taking remedial measures. Unless the Seller refuses or has no reply, the Buyer shall not take other legal remedies during the grace period. The legal consequences of the Chinese Contract Law on delayed delivery by the seller do not include the invalidity of the contract, but will only lead to the termination of the contract.

* 6 CISG Article 49: (1) The Buyer may declare the contract invalid if: (a) The Seller fails to perform any of his obligations in the Contract or this Convention is a fundamental breach of the Contract; (b) If there is no delivery, the Seller does not deliver the Goods within the additional time specified in the Buyer in accordance with Article 47 (1), or the Seller declares that he will not deliver the Goods within the specified time. …….

1.6 Goods Inspection

1.6.1 General Terms

Contract shall make clear agreements on the inspection period, inspection content, notification period, shelf life, inspection agency, the burden of inspection fees, and the other party’s right to re-inspection. The standards for passing the goods inspection should be clear. The high incidence of export trade disputes is: the goods that have been inspected before shipment will be detected after reaching the destination; or, some unqualified products are randomly inspected and all the goods are required to be returned, etc.

1.6.2 Notification period for goods not complying with

Lawyer should note that in the absence of special agreement, there is a slight difference between CISG and China's "Contract Law" regarding "the buyer's notice obligation on goods not complying with goods":

(1) CISG stipulates that the inspection period of goods and the notification period for quality objections are independent of each other. If the two parties do not make a clear agreement, the buyer must inspect the goods in a reasonable and shorter time as possible (the maximum time is 2 years after delivery of the goods, and the provisions for the 2-year period shall not apply if the goods are agreed to have a guarantee period for the goods); the inspection can be carried out after the goods arrive at the destination, and the inspection content includes "quantity, quality, specifications, packaging methods, etc."; after the inspection is completed, the buyer will enjoy a period of time as a notice period, but the notice period should be timely and reasonable, and the notice must indicate the nature of the goods inconsistent. If the buyer has reasonable reasons not to issue notice, he still enjoys specific rights of relief. If the seller maliciously conceals the fact that the goods are inconsistent, the buyer's obligation to notify is statutory exemption.

* 7 CISG Article 39: (1) The buyer has no agreement with the goods and must notify the seller within a reasonable period of time after discovery or should have found the situation of the situation, indicating that the nature of the situation is not in line with the situation, otherwise he will lose the right to claim that the goods do not meet the situation. (2) In any case, if the buyer does not notify the seller of the goods that are not in compliance with the same circumstances within two years from the date of actual receipt of the goods, he will lose the right to claim that the goods are not in compliance with the guarantee period stipulated in the contract.

(2) China's "Contract Law" stipulates that after receiving the goods, the buyer shall inspect the "quality and quantity" of the goods within the agreed inspection period. If there is no agreed inspection period, the goods shall be inspected in a timely manner. The buyer shall notify the seller of the situations in which the quantity or quality of the subject matter does not comply with the agreement within the inspection period.

* 8 Article 157 of the Contract Law: Article 157 The buyer shall inspect the subject matter within the agreed inspection period when receiving the subject matter. If there is no agreed inspection period, inspection shall be carried out in a timely manner.

* 9 Article 157 of the Contract Law: If the parties agree on the inspection period, the buyer shall notify the seller of the quantity or quality of the subject matter during the inspection period if the quantity or quality of the subject matter does not comply with the agreement. If the buyer fails to notify you, it shall be deemed that the quantity or quality of the subject matter complies with the agreement. If the parties do not agree on the inspection period, the buyer shall notify the seller within a reasonable period when the quantity or quality of the subject matter is found or should have been found that it does not comply with the agreement. If the buyer fails to notify the seller within a reasonable period or does not notify the seller within two years from the date of receipt of the subject matter, it shall be deemed that the quantity or quality of the subject matter complies with the agreement, but there is a quality assurance period for the subject matter, the quality assurance period shall apply, and the provisions of the two years shall not apply. If the seller knows or should know that the subject matter provided does not comply with the agreement, the buyer shall not be subject to the notice time specified in the previous two paragraphs.

1.7 Payment conditions

1.7.1 Payment methods types

(1) Remittance payment: wire transfer, letter of exchange, bill of exchange

(2) Collection: light ticket collection, document collection, letter of credit, etc.

The most common payment methods for my country's export trade are: wire transfer, letter of credit, and document collection. Wire transfer is to remit money through bank transfer, and the business process of letters of credit and document collection is slightly complicated.

1.7.2 Letter of Credit (Letter Of Credit, abbreviation L/C)

1.7.2.1 ICC's "Uniform Practice for Documentary Letter of Credit" (UCP600) is an international practice for handling letter of credit business that has been accepted by most countries. Because it is a practice, when using letters of credit transactions, it should be noted that the letter of credit applies to the letter of credit. The "Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Letter of Credit Disputes Cases" stipulates that when the people's court hears a letter of credit dispute case, if the parties agree to apply relevant international practices or other provisions, the agreement shall follow; if the parties do not agree, the International Chamber of Commerce's "Uniform Practice for Documented Letter of Credit" or other relevant international practices shall apply.

1.7.2.2 Although the content of the letter of credit does not have a unified format, the content is basically the same. Overall, it includes: the description of the letter of credit itself, payment method, type, parties, bill of exchange requirements, description of the goods, payment currency and letter of credit amount, shipment and insurance terms, document terms, other terms, etc.

1.7.2.3 The requirements for negotiable documents by letter of credit are that the documents are consistent and the documents are consistent. Therefore, when the seller receives an application for issuing a letter of credit, he should strictly review whether the agreements in the letter of credit are consistent with the contract agreement (commonly known as "certificate review"). If the terms of the letter of credit do not match the terms of the contract, the buyer should immediately ask the buyer to modify the letter of credit. If the seller does not propose to modify the letter of credit, it cannot infer the validity of the corresponding changes in the terms of the export trade contract. The letter of credit and the contract are separate documents. The bank handles the letter of credit business, only dealing with documents and not cargo.

1.7.2.4 When the seller reviews the letter of credit, he must check whether there are any soft clauses that put the seller in a passive position (Soft Clause). Common soft terms include: 1) The inspection verification required by the buyer; 2) The validity period of the letter of credit is the same as the shipment period (which will result in the seller not having time to make or settle foreign exchange); 3) The designated shipping company, ship name, destination port, etc., or the shipment date must be notified by the issuer; 4) The issuing bank exempts the first payment responsibility (such as the goods pass the inspection and pass the buyer before they can be paid); 5) The letter of credit does not take effect for the time being; 6) The delivery method of picking up the goods first and then negotiating payment, and other receipts such as waybills are negotiated; 7) Others.

If the soft clause is found in the certification examination, the applicant must be notified as soon as possible and state the legal consequences if not modified.

1.7.2.5 Legal liability for issuing false documents

In practice, the quantity of goods delivered to the buyer, the shipping date, etc. may not be consistent with the provisions of the contract or letter of credit. In order to obtain payment, the seller can only produce documents that are in line with the content of the letter of credit. This is a fraudulent act of letter of credit, which may lead to the legal consequences of the suspension or termination of the negotiation of the letter of credit. The correct operation is: require the buyer to modify the letter of credit, or issue a proof that the documents are not in line with the discrepancy.

1.7.3 Collection of orders

There are two ways to collect orders: payment receipt (D/P); acceptance receipt (D/A).

Documents against payment (abbreviation D/P) means that the seller delivers the documents on the condition that the buyer pays, that is, the buyer can only collect the documents from the collecting bank after the buyer pays.

acceptance receipt ((Documents against Acceptance, abbreviation D/A) means that the buyer guarantees that the bank will pay within a few days, and the bank will give the buyer documents according to the promise.

1.7.4 Safe foreign exchange collection is the most important part of the export trade contract. The seller can purchase export credit insurance to avoid risks. However, the premise is that a relatively comprehensive transaction information and information is required to pass the review.

1.8 Documents

International trade documents are used in a variety of ways, from inspection, customs declaration, customs clearance, and negotiating, every step is inseparable from documents. Common documents in export trade are:

(1) Commercial invoice (COMMERCIAL INVOICE). If there is SIGNED on the letter of credit. COMMERCIAL INVOICE means that it must be a commercial invoice stamped with a seal.

(2) Packing list (PACKING LIST). Packing list is prepared by the seller before export customs declaration, which may not match the actual data. It is very likely that the customs declaration document and the customs declaration document are different.

(3) Bill of Lading (BILL OF LADING). Bills of lading are property rights certificates. In practice, in order to rush to pick up the goods, the buyer will ask the seller to provide an "electronic bill of lading". This type of bill of lading is extremely risky because the product can be picked up with a copy of the bill of lading stamped with the electric discharge seal.

(4) Certificate of origin.

(5) Insurance document.

(6) Inspection and verification certificate. Depending on the issuing agency, including the statutory inspection certificate, the buyer or seller or a third-party inspection agency will issue it by itself. Certificate. Lawyers should note that the statutory inspection certificate cannot be used as necessary evidence to prove the quality of the goods, because most statutory inspections are only released on paper or electronic application documents.

(7) Other documents: shipment notice, various certificates, etc., provided by the buyer and seller in accordance with the contract agreement or practice.

1.8.1 In case of inconsistent documents

In principle, the content of the document should be consistent with the contract, but it will still appear in practice The situation of "one business, several sets of documents". When handling such disputes, lawyers should collect various documents submitted in different links, review whether there are differences between documents, and find out the reasons, so as to distinguish the degree of fault of the parties.

1.9 Ownership

1.9.1 There is no unified law regarding the transfer of ownership. CISG clearly stipulates that it excludes the application of ownership of goods. Therefore, in export trade contracts, the transfer of ownership depends on the domestic law chosen by the parties.

1.9.2 China's "Contract Law" stipulates that the seller shall deliver relevant documents and materials other than the documents for withdrawing the subject matter to the purchaser in accordance with the agreement or trading habits. The ownership of the subject matter will be transferred from the time the subject matter is delivered, except where otherwise provided by law or agreed by the parties.

* 10 Article 136 of the Contract Law: The seller shall deliver relevant documents and materials other than the documents for withdrawing the subject matter to the buyer in accordance with the agreement or trading habits.

1.9.3 In the absence of special agreement, CISG and China's Contract Law do not take whether the buyer pays all the consideration for the goods as a prerequisite for the transfer of ownership. In other words, in order to protect the interests of the seller, the two parties may make special agreements on the ownership of the goods in the export trade contract to prevent the buyer from bankruptcy and inability to pay after obtaining ownership of the goods.

1.10 The contract is subject to law and jurisdiction

1.10.1 The two parties have not made any agreement on the applicable law in the export trade contract, nor have they clearly excluded the application of CISG. The country where both parties are business locations are contracting parties to the CISG, and the court should directly apply CISG; for parts that do not fall within the scope of application of CISG, the court can determine the applicable law based on the principle of closest contact.

1.10.2 If the contract only states "according to Chinese law" rather than "according to Chinese Contract Law", it cannot be excluding CISG. If the CISG is to be excluded, there should be a clear description similar to "excluding CISG and applying Chinese Contract Law".

1.10.3 For the choice of disputed institutions, choosing a Chinese court will be more beneficial to one party in China, which generally ensures that CISG and China Contract Law are applied.

1.11 Arbitration clause

1.11.1 Arbitration is the main way to resolve international trade. Any party that a dispute must submit the reached arbitration clause before applying for arbitration.

1.11.2 arbitration clause should include: arbitration institution, place of arbitration, arbitration rules, applicable laws, arbitration language, composition of the arbitration tribunal, and other basic contents. For more complex export trade contracts, a special arbitration agreement can be signed to further agree on court proceedings, evidence rules, etc.

1.11.3 The arbitration fee abroad is relatively high, so when selecting an arbitration institution, you should understand the details such as the charging method in advance, otherwise the arbitration fee may far exceed the disputed fee. From the perspective of benefiting the seller, it is appropriate to select a domestic arbitration institution in China.

1.11.4 Generally, unless the law of the country where the arbitration is subject to the contrary, the arbitration award has been made and will take effect. The parties may apply for execution to the court where the property is located. If you apply for execution to a foreign court outside the country where the arbitration is located, you can handle it in accordance with the New York Convention (i.e. the Convention on the Recognition and Enforcement of Foreign Arbitral Awards).

1.12 Foreseeable Rules

1.12.1. Definition of

Foreseeable Rules means that if one party in the contract causes losses to the other party due to breach of contract, the breach of contract will only be responsible for compensation within the scope of foreseeable damages when concluding the contract.

1.12.2 Compensation scope

Export trade contract disputes have a wide range of losses, including but not limited to value of goods, freight, insurance premiums, tariffs, interest, profits, indirect losses (such as compensation liability to a third party due to breach of contract by one party). When entering into a contract, when formulating terms for breach of contract liability, both parties should fully disclose important facts in the contract, such as whether the buyer resells the goods from a third party, the delivery time of the reselling third party, and whether the liability for compensation caused by delayed delivery will be expanded.

1.13 Force Majeure

Since there is no unified explanation for force majeure, both parties shall arrange the force majeure clauses in the contract, make general or enumerative provisions on force majeure, and it is necessary to make an agreement on the notice period and the documents that need to be prepared. When force majeure occurs, the party that fails to perform the contract should promptly issue a notice and prepare necessary documents.

1.14 Other matters to be agreed upon

Some buyers have requirements for the seller's manufacturer qualifications. In order to avoid the seller's subcontracting of the business in whole or in part, the terms related to the subcontracting should be clearly agreed in the contract. Such things should be reflected in the contract.

Chapter 3 Performance of Export Trade Contract

1. Breach of Contract and Liability

Breach of Contract means failure to perform the contract or perform the contractual obligations inconsistent with the agreement.

Contractual obligations, including primary payment obligations, secondary payment obligations, accompanying obligations and non-real obligations. Violation of payment obligations and accompanying obligations constitutes a breach of contract and must bear the corresponding breach of contract liability unless there is a legitimate reason. The legitimate reasons include the legitimate exercise of the right of defense and lien, force majeure or change of circumstances, etc.

The ways to bear liability for breach of contract include continuing to perform, taking remedial measures, cessation of breach of contract, compensation for losses, payment of liquidated damages and deposit liability, etc.

2. Breach of Contract and Responsibilities

The performance of the sales contract shall be based on the principle of complete and appropriate performance. In summary, the performance must be completed in accordance with the contract agreement, in accordance with the quality, quantity, time, packaging requirements, and supplier qualification requirements. The form of default can be divided into delayed performance, refusal to perform, incomplete performance, etc. in terms of the dimensions of performance time, expression of intention made by the debtor of failure, quality, quantity, packaging, supplier qualifications and third-party rights of the subject matter, etc.

1.1 Performance delay

1.1.1 Type: The performance delay in export trade contracts mainly includes delay in the performance of the seller, delay in the buyer's acceptance, delay in the buyer's payment and other types.

1.1.2 Seller's delay in performance: The seller shall deliver the subject matter to the buyer or extract documents of the subject matter in accordance with the terms of time, place and price agreed in the contract.

* 11 Article 135 of the Contract Law: The seller shall fulfill his obligation to deliver the subject matter to the buyer or deliver documents to the withdrawal of the subject matter, and transfer the ownership of the subject matter.

1.1.2.1 Delivery time is the judgment standard for on-time delivery. Delivery at the wrong location and failure to deliver at the agreed location upon the expiration of the performance will constitute a delay in performance.

1.1.2.2 Documents for the subject matter and the extraction of the subject matter should be delivered on time: In an export trade contract, the document for the extraction of the subject matter is a certificate that the direct possession of the subject matter has been transferred to the carrier or the buyer or its agent (determined on the international trade term stipulated in the contract) and a certificate of the transportation contract. It is also a certificate of the right to request the subject matter when the subject matter is handed over to the carrier. By delivering such documents to the buyer, the buyer can extract the subject matter. Under different price conditions, if the contract stipulates that the seller should deliver the documents, delivering the documents on time is of equal importance as delivering the subject matter on time. The delivery of any subject matter and the aforementioned documents that are later than the delivery period stipulated in the contract will constitute a delay in performance. Although the delay in delivery of non-main documents does not violate the principal payment obligations of the contract, it also constitutes a delay in performance as a violation of the accompanying obligations.

1.1.2.3 Notice and proof of legitimate reasons for postponing performance: When a delay in performance occurs, if the seller has a legitimate reason for postponing performance, he should notify the buyer without hesitation when the reason occurs, such as the failure to perform on time due to the simultaneous performance, the right to perform first, the right to restlessness, force majeure or change of circumstances occurs. The seller must assume the obligation to provide evidence for the acquisition of the right of defense, and the occurrence and exercise of the right of defense and the right of first performance must be in the same contract. The occurrence of force majeure and changes in circumstances must be causally related to the inability to perform the contract on time. In such circumstances, the seller not only assumes the obligation to notify, but also assumes the obligation to prove such reasons, such as third-party certification. Force majeure that occurs after delayed performance cannot constitute a legitimate reason.

1.1.2.4 In the event of delay in performance of the seller, the seller should: In addition to matters 1.1.2.3, the seller should promptly notify the buyer and request the buyer to give a reasonable grace period, and the buyer will confirm the grace period in writing. If the buyer directly terminates the contract without giving grace period for reasonable reasons, the seller shall not deliver the goods.

1.1.2.5 In the event of delay in performance of the seller, the buyer's right: If the seller delays the performance of the main debt but does not cause the buyer's contract to fail, the buyer shall promptly give the seller an appropriate grace period. If the seller fails to perform and has no legitimate reasons for the grace period, the buyer may terminate the contract. If the delay in performance of the seller causes the purpose of the buyer's contract to fail, the buyer may terminate the contract. During the grace period, the buyer has no right to take remedial measures such as alternative procurement. In any case, the buyer may file a claim for damages to the seller for losses suffered by the seller's delay in performance or seek liquidated damages as agreed in the contract. Granting a grace period is a type of claim for continued performance, but in the case of statutory performance, that is, legally or in fact, economically unable to perform, and creditors do not request continued performance within a reasonable period of time.

* 12 Article 94 of the Contract Law: If one of the following circumstances occurs, the parties may terminate the contract:

(III) One party delays the performance of its main debt, and it still fails to perform within a reasonable period after being reminded; (IV) One party delays the performance of its debt or has other breach of contract, which makes the purpose of the contract unable to be achieved;

* 13 Article 110 of the Contract Law: If one party fails to perform non-monetary debts or performs non-monetary debts in compliance with the agreement, the other party may request performance, except in one of the following circumstances: (I) Legal or factually unable to perform; (III) The subject matter of the debt is not suitable for compulsory performance or the performance costs are too high; (III) The creditor does not require performance within a reasonable period of time.

1.1.3 Buyer's acceptance delay: In the export trade contract, under the circumstances of full and appropriate performance by the seller, there are two stages of "receive" and "acceptance" for the subject matter or the documents for the withdrawal of the subject matter. Receiving refers to the possession and acquisition of the subject matter or the document. The acceptance does not mean the recognition of the seller's contract owner's obligation to pay the full and appropriate performance; acceptance refers to the buyer's approval of the quality and quantity of the subject matter or the document, which is directly related to the buyer's inspection.

1.1.3.1 The buyer's obligation to accept goods on time means that the buyer should receive goods or documents in a timely manner, otherwise it will constitute delay in acceptance. Receiving delays may not only cause risks to the buyer, but also bear responsibility for the expenses incurred, such as additional Hong Kong miscellaneous fees, warehousing fees, customs and other administrative fines, even refunds and damages to the seller.

* 14 Article 146 of the Contract Law: If the seller places the subject matter at the delivery place in accordance with the agreement or in accordance with the provisions of Article 141, Paragraph 2, Paragraph 2, Paragraph 2, and Paragraph 2 of this Law, and the buyer fails to collect the subject matter in violation of the agreement, the risk of damage or loss of the subject matter shall be borne by the buyer from the date of breach of the agreement.

1.1.3.2 Unless there are extremely rare circumstances, such as force majeure, or the seller fails to fully and appropriately perform the contractual obligations, including the seller's early or partial performance and damages the buyer's interests or quality breach of contract, resulting in the failure of the buyer's contract purpose, or excessive delivery, resulting in the buyer's legal exercise of the buyer's refusal to accept, there is no problem of delay in acceptance. Even if the buyer can legally exercise the refusal to accept, in terms of the obligation to reduce losses under the contract law, the buyer still bears the obligation to receive and keep the subject matter in a timely manner, and breach of such obligations will lead to the buyer's liability for the expanded losses. When exercising the right to refuse acceptance, the buyer shall promptly notify the seller of the refusal to accept, inform the location of the warehouse, notify him to pay the relevant fees and declare his right to claim.

* Article 71 of the Contract Law: Creditors may refuse the debtor to perform their debts in advance, except where early performance does not harm the interests of the creditors. The additional expenses added to the creditor by the debtor's early performance of the debt shall be borne by the debtor.

Article 72 of the Contract Law: The creditor may refuse the debtor to partially perform the debt, except where partial performance does not harm the creditor's interests. The debtor shall bear the additional expenses for the creditor to perform part of the debt.

Article 148 of the Contract Law: If the quality of the subject matter does not meet the quality requirements and the purpose of the contract cannot be achieved, the buyer may refuse to accept the subject matter or terminate the contract. If the buyer refuses to accept the subject matter or terminates the contract, the risk of damage or loss of the subject matter shall be borne by the seller.

Article 162 of the Contract Law: If the seller handes over the subject matter more, the buyer may accept or refuse to accept the overpaid part. If the buyer accepts the overpaid part, the price shall be paid according to the price of the contract; if the buyer refuses to accept the overpaid part, the seller shall promptly notify the seller.

1.1.3.3 In the event that the buyer defaults and accepts the contract, the seller shall notify the buyer to accept the contract within the specified period. If the buyer refuses or fails to accept the contract after the deposit is established, the seller may deposit the subject matter and notify the buyer in a timely manner. After the deposit is established, the seller shall complete the performance of the obligation, but the seller shall also bear the obligation to reduce losses.

* 16 Article 101 of the Contract Law If it is difficult to perform the debt in any of the following circumstances, the debtor may deposit the subject matter: (1) The creditor refuses to accept it without a legitimate reason;….

* 17 Article 25 of the Judicial Interpretation of the Contract Law of the Supreme People's Court (II): In accordance with Article 101 of the Contract Law, when the debtor delivers the proceeds from the auction or sale of the contract subject matter or subject matter to the deposit department, the people's court shall determine that the deposit is established. If the deposit is established, it shall be deemed that the debtor has fulfilled the debt within the scope of his deposit.

1.1.3.4 After receiving the subject matter, the buyer shall promptly inspect it at the destination agreed in the contract. Inspection obligations are non-real obligations in the contract, and the consequences of failure or failure to perform such failures in a timely manner shall be borne by the buyer.

1.1.4 Buyer's payment delay

1.1.4.1 The period of performance of the buyer's payment obligation depends on the contract agreement. Payment later than the agreed period constitutes a delay in payment.

1.1.4.2 The legalization of payment delay and its obligation to notify and prove is the same as the delayed performance of the seller (1.1.2.3) and the buyer refuses to exercise his rights (1.1.3.2). There is no inability to perform the money debt, so continuing performance is the seller's right to claim.

1.1.4.3 The seller should: give the buyer a grace period, which does not result in the loss of damages or the right to claim liquidated damages. If the buyer refuses to pay before the expiration of the grace period or fails to pay after the expiration of the grace period, the seller may terminate the contract and request compensation for damages.

1.1.4.4 The buyer should: if there is no legitimate reason, payment delay will lead to the buyer's liability for breach of contract, so the buyer should make a payment on time or claim to refuse or delay payment and fulfill the obligation to promptly notify and reduce losses.

1.1.4.5 Payment delay is often associated with rejection of goods in practice, especially when the payment conditions stipulated in the contract are: allowing the buyer to make payment after deciding to accept or refuse to accept the goods. Unless the contract stipulates that inspection of the goods is not a statutory condition for payment, if the buyer cannot prove that the goods have quality problems before the payment period and lead to the failure of the purpose of the contract and the termination of the contract, the buyer cannot claim to delay or refuse payment due to the quality problems of the goods.

1.1.4.6 In the case of payment of the order, such as D/P or L/C, if the document shows that the seller defaults, or under the D/P payment conditions, although the document does not show the default, the buyer has a legitimate reason, including but not limited to 1.1.2.3 and 1.1.3.2, the buyer may refuse to accept the document. Such refusal is essentially a refusal to receive and refusal to pay, and the buyer's notice and impairment obligation are the same as above.

1.1.5 Buyer delays the performance of other contractual obligations

1.1.5.1 Buyer's other contractual obligations include but are not limited to sample testing and confirmation as stipulated in the contract, provision of technical and specification indicators, provision of packaging style and trademark rights certificates, supplier qualification review and results notification that should be responsible for by the Buyer, and pre-delivery inspection, etc. The full and appropriate performance of these obligations determines whether the Seller can perform its contractual obligations on time.

1.1.5.2 In the event that the buyer delays the performance of these obligations, the seller may exercise the right of first performance to the delivery of the subject matter. The exercise of the right of defense shall be notified to the buyer. At the same time, the seller shall give the buyer a grace period. If the buyer expires and fails to perform, the seller may terminate the contract and request compensation for damages. If delivery delays are caused by the seller's reasons, such as if the supplier's review agreed in the contract fails to pass and the subject matter fails to pass the inspection of the buyer or its designated third party, the seller shall not be liable for the delay in delivery or even delivery.

1.2 Refusal to perform

1.2.1 Definition of refusal to perform: The parties to the contract should perform it, expressly or by acts to express failure to perform the contract. Refusal to perform includes the seller's refusal to perform and the buyer's refusal to perform.

1.2.2 The form of refusal to perform: According to the performance period, it can be divided into refusal to perform before the period (expected breach of contract) and refusal to perform at the same time; according to the primary and secondary obligations, it can be divided into refusal to perform undertakings, refusal to perform undertakings, and refusal to perform undertakings and refusal to perform undertakings.

1.2.3 Expected breach of contract: If one party refuses to perform its main obligations before the expiration of the performance period, the opposite party may terminate the contract; if one party refuses to perform the contract obligations (including politicians), the opposite party may request him to bear the liability for breach of contract before the expiration of the performance period. At the same time, the grace period shall be given. If the grace period fails to perform at the expiration of the grace period, the opposite party may terminate the contract and request damages from the other party or pay liquidated damages. The burden of proof for the expected breach is on the non-breach party. In export trade contract disputes, the expected form of breach of contract is generally to refuse to perform the main obligations before the expiration of the performance period, such as refusing to deliver goods or accept goods or refuse to pay, or it may be refusing to perform non-main obligations, such as the prior obligations undertaken for the other party to perform the contract (such as refusing sample certification test, refusing supplier qualification review or failure to pass the supplier review, etc.). Therefore, the non-breaching party may terminate the contract and request damages or liquidated damages if the other party refuses to perform its main obligations. When a party expressly or by conduct indicates that it refuses to perform a non-main obligation, the non-blocking party should request the defaulting party to provide guarantees and/or grant grace periods as the delivery performance period has not expired. The non-breaking party enjoys the right to first perform and the right to simultaneously perform the defense when the other party expects to breach the contract. The right to defend uneasy can be exercised properly on the non-breach of contract, and the right to defend uneasy can be exercised.

* 18 Article 94 of the Contract Law: If any of the following circumstances occurs, the parties may terminate the contract: (1) The purpose of the contract cannot be achieved due to force majeure; (2) Before the performance period expires, one party clearly states or expresses his or her own actions that he or she fails to perform the main debt;...

1.2.4 Refusal to perform during the term of performance: A party to the party expressly or acts to express that it will fail to perform the contract, that is, it refuses to perform during the term of performance. In theory, such refusal to perform is generally a failure to perform. A non-breaching party may terminate the contract and request compensation or pay liquidated damages. The seller may deposit the subject matter if the buyer refuses to accept it without a legitimate reason.

1.3 Incomplete performance of

1.3.1 The types of incomplete performance of sales contracts include defects in rights and defects in subject matter, as well as defects in performance of accompanying obligations.

1.3.2 Rights defects: There is a third-party right (including industrial property rights, intellectual property rights, property rights, etc.) on the subject matter, resulting in the buyer pursuing or claiming compensation by a third party after obtaining "ownership". In such circumstances, if the Buyer does not know or should not know the circumstances when entering into the contract, the Buyer shall immediately notify the Seller, or if the Buyer knows that there are third-party rights in the property other than industrial and intellectual property rights and collects the goods, may suspend payment and request the Seller to provide a guarantee, or may terminate the contract and request the return of the paid portion of the price and damages or pay liquidated damages.

* 19 Article 150 of the Contract Law: The seller has the obligation to guarantee that the third party shall not assert any rights from the buyer regarding the subject matter delivered, except as otherwise provided by law.

Article 151 of the Contract Law: If the buyer knows or should know that a third party has rights to the subject matter of the sale when entering into the contract, the seller shall not assume the obligations stipulated in Article 150 of this Law.

Article 152 of the Contract Law: If the buyer has definite evidence to prove that a third party may claim rights for the subject matter, he may suspend payment of the corresponding price, except where the seller provides appropriate guarantees.

CISG Article 41: The goods delivered by the seller must be goods that cannot be made by a third party unless the buyer agrees to collect the goods under the conditions of such rights or claims. However, if such rights or claims are based on industrial property or other intellectual property rights, the seller's obligation shall be in accordance with Article 42.

CISG Article 42 (1) The goods delivered by the Seller must be goods that a third party cannot claim any right or claim under industrial property or other intellectual property rights, but shall be limited to the rights or claims known or impossible to be unaware of when the Seller entered into the contract, and such rights or claims are based on industrial property or other intellectual property rights as stipulated in the following countries (a) If the parties expect the goods to be resold or otherwise used in a certain country at the time of the conclusion of the contract, the goods will be resold or other use within the territory of the country; or (b) in any other case, the laws of the country where the Buyer's place of business are located. (2) The Seller's obligations in the previous paragraph do not apply to the following situations: (a) the Buyer has known or cannot be unaware of this right or claim when entering into the contract; or (b) the occurrence of this right or claim is due to the Seller's compliance with the technical drawings, patterns, programs or other specifications provided by the Buyer.

* 20 CISG Article 43: (1) If the Buyer does not notify the Seller of the nature of such rights or claims within a reasonable period of time after the third party has known or should have known the rights or claims, he shall lose his rights provided for invoking Article 41 or 42. (2) If the seller knows the rights or claims of a third party and the nature of this right or claim, he or she has no right to invoke the provisions of the previous paragraph.

* 21 CISG Article 41: The goods delivered by the seller must be goods that a third party cannot make any rights or claims unless the buyer agrees to collect the goods under the conditions of such rights or claims. However, if such rights or claims are based on industrial property or other intellectual property rights, the seller's obligations shall be in accordance with Article 42.

1.3.3 Defects of the subject matter

1.3.3.1 Defects of the subject matter include defects in the quality of the subject matter and packaging defects.

1.3.3.2 Inspection and Notification: Quality defects depend on the buyer's inspection. The inspection location should be at the destination agreed in the contract. The inspection should be carried out as soon as possible after arriving at the destination and notify the seller immediately when defects in the subject matter are found. Third-party inspection reports are worth recommending.If defects in the subject matter may occur during transportation, such as mold in the goods, the buyer should immediately report the case to the insurance company. The Buyer's failure to inspect and/or prompt notification may lead to the loss of rights. Of course, if the seller knows or should know about quality defects, the buyer will not lose the right to claim and terminate the contract in accordance with the provisions of CISG. China's Contract Law only exempts the buyer from notifying the situation in such circumstances, that is, the buyer must also fulfill the obligation of timely inspection.

* 22 Article 157 of the Contract Law The buyer shall inspect the subject matter within the agreed inspection period when receiving it. During the inspection period without an agreed inspection period, inspection should be carried out in a timely manner.

CISG Article 38: (1) The buyer must inspect the goods or inspect the goods by others within the shortest time as is practical as possible. (2) If the contract involves the transportation of goods, inspection can be postponed after the goods arrive at the destination. (3) If the goods are re-shipped during transportation or the buyer must ship the goods again, there is no reasonable opportunity to inspect, and the seller has known or deserved to know the possibility of such re-ship or re-ship at the time of the contract, the inspection may be delayed until the goods arrive at the new destination.

* 23 Article 157 of the Contract Law If the parties agree on the inspection period, the buyer shall notify the seller of the quantity or quality of the subject matter during the inspection period if the quantity or quality of the subject matter does not comply with the agreement. If the buyer fails to notify you, it shall be deemed that the quantity or quality of the subject matter complies with the agreement.

If the parties do not agree on the inspection period, the buyer shall notify the seller within a reasonable period when the quantity or quality of the subject matter is found or should have been found that the quantity or quality of the subject matter does not comply with the agreement. If the buyer fails to notify the seller within a reasonable period or does not notify the seller within two years from the date of receipt of the subject matter, it shall be deemed that the quantity or quality of the subject matter complies with the agreement, but there is a quality assurance period for the subject matter, the quality assurance period shall apply, and the provisions of the two years shall not apply. If the seller knows or should know that the subject matter provided does not comply with the agreement, the buyer shall not be subject to the notice time specified in the previous two paragraphs.

CISG Article 39: (1) The buyer has the same content as the goods, and must notify the seller within a reasonable period of time after discovery or should have found that the circumstances are not in line with the circumstances, otherwise he will lose the right to claim that the goods are not in line with the same content. (2) In any case, if the buyer does not notify the seller of the goods that are not in compliance with the same circumstances within two years from the date of actual receipt of the goods, he will lose the right to claim that the goods are not in compliance with the guarantee period stipulated in the contract.

* 24 CISG Article 40: If the goods do not comply with the same provisions, which means that the seller has known or cannot not know without informing the buyer, the seller has no right to invoke the provisions of Articles 38 and 39.

* 25 Article 158, Paragraph 3 of the Contract Law: If the seller knows or should know that the subject matter provided does not comply with the agreement, the buyer shall not be subject to the notice time specified in the previous two paragraphs.

1.3.3.3 fundamental breach of contract: Quality defects are distinguished from fundamental breach of contract and non-substantially breach of contract that leads to the failure of the buyer's contract purpose. If quality defects lead to fundamental breach of contract, the buyer can terminate the contract. The Supreme People's Court's view of judging fundamental breach of contract caused by quality defects is to consider the following facts: the ratio between the value or amount of the breach of contract and the amount of the entire contract; the degree of impact of the breach of contract on the realization of the contract objectives; whether the consequences and damages of the breach of contract can be repaired; in batch delivery contracts, the degree of impact of a certain batch of delivery obligations on the entire contract. If quality defects are non-substantially defaulted, the buyer may request the seller to take remedial measures and give a reasonable performance period, or may reduce the price.

* 26 CISG Article 25: If one party violates the contract, if the other party suffers damage, in fact, it actually deprives him of what he has the right to expect according to the contract provisions, it is a fundamental violation of the contract, unless the party who violates the contract does not predict and a person of equal qualification and reasonableness is in the same situation, there is no reason to predict that such a result will occur.

* 27 Article 111 of the Contract Law: If the quality does not comply with the agreement, the parties shall bear the liability for breach of contract.If there is no agreement on the liability for breach of contract or the agreement is unclear and cannot be determined in accordance with Article 61 of this Law, the injured party may reasonably choose to require the other party to bear the liability for breach of contract such as repair, replacement, reproduction, return, reduction of price or remuneration based on the nature of the subject matter and the size of the loss.

Article 148 of the Contract Law: If the quality of the subject matter does not meet the quality requirements and the purpose of the contract cannot be achieved, the buyer may refuse to accept the subject matter or terminate the contract. If the buyer refuses to accept the subject matter or terminates the contract, the risk of damage or loss of the subject matter shall be borne by the seller.

* 28 Second Civil Trial Division of the Supreme People's Court: "Understanding and Application of Judicial Interpretation of Sales Contracts by the Supreme People's Court", People's Court Press, 2012 edition, pages 409-410.

* 29 CISG Article 50: If the goods do not meet the same conditions, the buyer may reduce the price regardless of whether the price has been paid. The reduction is calculated based on the ratio between the actual value of the goods delivered at the time of delivery and the value of the goods in compliance with the contract at that time. However, if the Seller remedies for any failure to perform the obligation in accordance with Article 37 or Article 48, or if the Buyer refuses to accept the Seller’s performance of the obligation in accordance with the provisions of these two provisions, the Buyer shall not reduce the price.

1.3.4 Partial fulfillment

1.3.4.1 Partial fulfillment is incomplete performance of quantity. Incomplete performance of a quantity in a narrow sense is the situation where the quantity delivered during the performance period is less than the contract agreement, and incomplete performance of a quantity in a broad sense includes errors in the subject matter.

1.3.4.2 Remedies for partial performance include taking remedial measures, compensation for damages or payment of liquidated damages. However, in the event that partial performance leads to a fundamental breach of contract, the buyer can terminate the contract.

3. Contract termination

3.1 Definition and effect: Contract termination is the act of both parties or one party termination of the validity of the contract in accordance with the contract agreement or legal provisions. The termination of the contract results in the non-performing part being no longer performed, and for the part that has been performed, the parties may request to restore the original state, take other remedies and request compensation for damages or pay liquidated damages.

* 30 Article 97 of the Contract Law If the contract has not been performed after the contract is terminated, the performance shall be terminated; if it has been performed, the parties may request the restoration of the original state, take other remedial measures based on the performance status and nature of the contract, and have the right to claim compensation for the losses.

3.2 Type:

Agreement termination: When the termination situation agreed in the contract occurs, one or both parties can terminate the contract;

Consensual termination: After the contract takes effect, both parties agree to terminate the contract;

Legal termination: When the statutory right of termination arises, the party that enjoys the right of termination terminates the contract.

* 31 Article 94 of the Contract Law If any of the following circumstances occurs, the parties may terminate the contract: (1) The purpose of the contract cannot be achieved due to force majeure; (2) Before the performance period expires, one party clearly states or expresses its own actions that it fails to perform the main debt; (3) One party delays the performance of the main debt, and has not yet performed within a reasonable period after being reminded; (4) One party delays the performance of the debt or has other breach of contract, which makes the purpose of the contract cannot be achieved; (5) Other circumstances stipulated by law.

Article 69 of the Contract Law If a party suspends performance in accordance with the provisions of Article 68 of this Law, it shall promptly notify the other party. When the other party provides appropriate guarantees, performance shall be resumed. After the suspension of performance, if the other party fails to restore its performance capacity within a reasonable period and fails to provide appropriate guarantees, the party that suspends performance may terminate the contract.

Article 148 of the Contract Law If the quality of the subject matter does not meet the quality requirements and the purpose of the contract cannot be achieved, the buyer may refuse to accept the subject matter or terminate the contract. If the buyer refuses to accept the subject matter or terminates the contract, the risk of damage or loss of the subject matter shall be borne by the seller.

Article 26 of "Judicial Interpretation II of the Contract Law of the Supreme People's Court" After the establishment of the contract, there has been a major change in the objective situation that the parties did not foresee when concluding the contract, which is not commercial risk caused by force majeure. Continuing to perform the contract is obviously unfair to one party or cannot achieve the purpose of the contract, and the parties request the people's court to change or terminate the contract, the people's court shall determine whether to change or terminate the contract based on the principle of fairness and the actual situation of the case.

CISG Article 49 (1) The Buyer may declare the contract invalid if: (a) The Seller fails to perform any of his obligations in the Contract or this Convention is equivalent to a fundamental breach of the contract; or

(b) If there is no delivery, the Seller will not deliver the goods within the additional time specified in the Buyer in accordance with Article 47 (1), or the Seller declares that he will not deliver the goods within the specified time. (2) However, if the Seller has delivered the goods, the Buyer loses the right to declare the contract invalid unless: (a) for delayed delivery, he does so within a reasonable time after knowing the delivery; (b) for any breach of contract other than delayed delivery: ① He does so within a reasonable time after he has known or deserved to know such breach of contract; or ② He does so after the expiration of any additional time specified by the Buyer in accordance with Article 47 (1), or after the expiration of any additional time specified by the Seller in accordance with this additional time; or ③ He does so after the expiration of any additional time specified by the Seller in accordance with Article 48 (2), or after the declaration that he will not accept the performance of the Seller in accordance with this additional time.

CISG Article 50: If the goods do not meet the same conditions, the buyer may reduce the price regardless of whether the price has been paid. The reduction is calculated based on the ratio between the actual value of the goods delivered at the time of delivery and the value of the goods in compliance with the contract at that time. However, if the Seller remedies for any failure to perform the obligation in accordance with Article 37 or Article 48, or if the Buyer refuses to accept the Seller’s performance of the obligation in accordance with the provisions of these two provisions, the Buyer shall not reduce the price.

CISG Article 51: (1) If the seller only delivers a part of the goods, or only a part of the goods delivered complies with the contract, the provisions of Articles 46 to 50 apply to goods that are missing and do not comply with the same provisions. (2) The buyer can declare the entire contract invalid only if the purchaser fails to deliver the goods at all or fails to deliver the goods in accordance with the contract provisions, which is a fundamental violation of the contract.

3.3 Status of statutory termination: The statutory termination of the export trade contract is mainly stipulated in the Contract Law and CISG. Among them, the termination of the contract law under the circumstances of change shall be decided by the court.

3.4 Notice of Termination: China's "Contract Law" stipulates a "reasonable period" and a reminder system under the circumstances that cannot be determined or agreed upon, while CISG makes stricter provisions on the notice of contract termination: that is, when the goods do not comply with the contract, the notice of termination should be issued at the same time as the notice that does not comply with the contract or within a reasonable time in the future. For delayed delivery and other breach of contract, notices should also be issued within a reasonable time.

* 32 Article 95 of the Contract Law: The right that the law stipulates or the parties agree on the exercise period for the right of termination shall be extinguished if the party fails to exercise upon the expiration of the period. If the law does not stipulate or the parties have not agreed on the period for exercising the right to terminate, and the right is not exercised within a reasonable period after being reminded by the other party, the right shall be extinguished.

Article 96 of the Contract Law: If one party claims to terminate the contract in accordance with the provisions of Article 93, paragraph 2 and Article 94 of this Law, it shall notify the other party. The contract is terminated when the notice arrives at the other party. If the other party has objections, it may request the people's court or arbitration institution to confirm the validity of the termination of the contract.

CISG Article 26: A statement that declares a contract invalid must be issued a notice to the other party before it is valid.

* 33 CISG Article 46: (1) The Buyer may require the Seller to perform his obligations unless the Buyer has taken some remedy that conflicts with this requirement.(2) If the goods do not meet the same conditions, the buyer may only request the delivery of the replacement goods if such non-compliance constitutes a fundamental breach of the contract. The requirements for the replacement goods must be filed at the same time as the notice issued in accordance with Article 39, or within a reasonable period of time after the notice is issued. (3) If the goods do not meet the same conditions, the buyer may require the seller to remedy the disagreements through repairs unless he considers all circumstances and believes that doing so is unreasonable. The request for repair must be made at the same time as a notice issued in accordance with Article 39, or within a reasonable period of time after the notice is issued.

3.5 Termination of objection: According to the Chinese Contract Law, termination of objection should be submitted to the court or arbitration institution.

3.6 Remedies after termination: Both the Contract Law and the CISG stipulate the right to obtain compensation from the other party for damages. Regarding the return of the subject matter, CISG has made clear provisions, that is, generally stipulate that if the subject matter cannot be returned in its original state, the buyer will lose the right to termination or substitute for the right to deliver, but it stipulates exceptions. CISG specifically stipulates systems such as return, substitute procurement or resale, and price difference compensation. CISG also stipulates the obligation of the remover to reduce losses.

* 34 CISG Article 74: The amount of damages that one party should bear for breach of the contract shall be equal to the amount of losses suffered by the other party, including profits, suffered by him for breach of the contract. Such damages shall not exceed the possible losses expected or expected of the breach of the contract when the party breach of the contract is concluded, in accordance with the facts and circumstances he already knew or should have known at the time.

* 35 CISG Article 82: (1) If the buyer cannot return the goods as it is actually received, he will lose the right to declare the contract invalid or require the seller to deliver the replacement goods. (2) The provisions of the previous paragraph do not apply to the following situations: (a) If it is impossible to return the goods or the return of the goods as it is actually received, it is not caused by the Buyer's actions or inactions; or (b) If the goods or part of it is destroyed or deteriorated, it is caused by inspection in accordance with Article 38; or (c) If the goods or part of it is sold by the Buyer during normal business, or consumed or changed during normal use, before the Buyer discovers or should have found that it is inconsistent with the contract.

CISG Article 83: Although the buyer loses the right to declare the contract invalid or require the seller to deliver the replacement goods in accordance with Article 82, he still reserves the right to take all other remedies under the contract and the provisions of this Convention.

* 36 CISG Article 75: If the contract is declared invalid and within a reasonable period of time after the declaration of invalidity, the buyer has purchased the substitute goods in a reasonable manner, or the seller has reselled the goods in a reasonable manner, the party seeking damages may obtain the difference between the contract price and the transaction price of the substitute goods and any other damages that can be obtained in accordance with Article 74.

CISG Article 76: (1) If the contract is declared invalid and the goods have a price, the party demanding damages, if it does not purchase or resell in accordance with Article 75, can obtain the difference between the price specified in the contract and the price at the time of the declaration of invalidity and any other damages that can be obtained in accordance with Article 74. However, if the party seeking damages declares the contract invalid after receiving the goods, the current price at the time of receiving the goods shall apply, and the current price at the time of declaring the contract invalid shall not apply. (2) For the purpose of the previous article, the current price refers to the current price of the place where the goods should be delivered. If the place does not have the current price, it refers to the price of another reasonable alternative place. However, the difference in freight costs should be considered appropriately.

* 37 CISG Article 77: The party claiming that the other party violates the contract must take reasonable measures as appropriate to mitigate the losses, including losses in profits, caused by the other party's breach of the contract. If he fails to take such measures, the party breach of the contract may request the amount of losses that could have been reduced from the damages.

Article 129 of the Contract Law: The term for filing a lawsuit or applying for arbitration due to disputes over international goods sales contracts and technology import and export contracts is four years, which is calculated from the date when the parties know or should know that their rights have been infringed.The deadline for filing a lawsuit or applying for arbitration due to other contract disputes shall be in accordance with the provisions of relevant laws.

Chapter 4 Lawyer’s business process for handling export trade litigation

1.1 Review the subject

contract system. Of course, the plaintiff and defendant, if there is an agency situation, the relevant subject can be listed as a co-defendant or a third party according to the circumstances to facilitate the ascertainment of the facts. However, once the agency relationship is disclosed, it may lead to the exporter's need to return the tax refunds that have been obtained to the tax authorities. According to regulations, exporters who are simply "agent exports" cannot enjoy national tax refunds.

1.2 clarifies the jurisdiction, jurisdictional authority, and applicable law

lawyers should file a lawsuit or respond to the jurisdiction agreed in the contract, and determine whether the dispute is arbitration or court and applicable law.

1.3 Determination of the statute of limitations

According to my country's laws, the term of filing a lawsuit or applying for arbitration due to disputes in international goods sales contracts and technology import and export contracts is four years, which is calculated from the date when the parties know or should know that their rights have been infringed. The deadline for filing a lawsuit or applying for arbitration due to other contract disputes shall be in accordance with the provisions of relevant laws.

1.4 Determine or review litigation requests

There are many types of export trade contract disputes, and litigation requests are the greatest correlation with applicable laws. Litigation requests that are beneficial to you should be determined based on who owns the goods, the proportion of receipt and payment, etc. It is necessary to note that different disputed matters will result in different litigation requests.

1.5 Prepare evidence

Lawyers should collect all negotiation documents and documents and information occurring at each link in the disputed contract from negotiation to performance. Including but not limited to the following:

1.5.1 materials that prove the performance of the contract;

1.5.2 materials that prove the other party’s breach of contract;

1.5.3 materials that prove the expenses and losses;

1.5.4 samples related to goods, etc.;

evidence that comes from abroad requires notarization, certification and other relevant procedures.

1.6 Litigation Preservation

Since international trade is mostly cross-border, it is impossible to preserve overseas property, but the equity in Chinese companies invested by overseas companies can be frozen.

1.7 Appear in court to respond to the lawsuit

1.8 Settlement

Export trade contract disputes have been resolved for a long time. If the case can be settled in a more reasonable way, it will be beneficial to both parties.

This guideline was drafted by the International Trade Business Committee of the Shanghai Lawyers Association. It is not mandatory or normative provision. It is for lawyers to refer to in actual business only.

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