Текст книги "Внешнеторговый международный контракт: типовой образец, пример контракта, экономические и юридические аспекты"

III. QUESTIONS AND ANSWERS

1. What Russian legislative provisions apply to foreign trade?

The Russian Federation has no special code for foreign trade, and the applicable commercial law is primarily Russian civil legislation.

2. What determines the sphere of application of an international agreement?

The sphere of application of an international agreement is determined by the agreement’s own precepts.

3. What is the legal status of international agreements under Russian law?

In accordance with the Constitution of the Russian Federation, article 15(4) and article 7(1) of the Civil Code of the R.F. Russia’s international agreements form part and parcel of its legal system.

4. Is the 1980 Vienna Convention imperative or dispositive in character?

Article 6 of the 1980 Vienna Convention states that the parties to a contract may exclude the application of this Convention or, subject to Article 12, derogate from or vary the effect of any of its provisions. This testifies to the dispositive character of the 1980 Vienna Convention.

5. On what assumption is the 1980 Vienna Convention based?

The 1980 Vienna Convention, accepted throughout the world, assumes that even after its incorporation into the national legal systems, it becomes an integral part of those systems only formally. Substantively, the Convention does not lose its original character of a special body of law autonomously developed at the international level and intended to be applied in a uniform manner throughout the world.

6. Do the parties to a contract need to refer to the 1980 Vienna Convention if it is applicable?

No, they don’t. The status of this Convention is such that it applies whether or not the parties mention it.

7. Is Russia a signatory to the 1980 Vienna Convention?

On December 24, 1991 the Russian Federation decided to continue the membership previously held by the USSR.

8. How many countries have signed the 1980 Vienna Convention on Contracts for the International Sale of Goods?

Since 19 May 1999 fifty six countries, including the Russian Federation and practically all its major trade partners, have signed the 1980 Vienna Convention.

9. The 1980 Vienna Convention and the Civil Code of the Russian Federation.How do their spheres of application differ?

In identifying spheres of application of the 1980 Vienna Convention and the rules set forth in the Civil Code of the Russian Federation governing trade, one should bear in mind the fundamental differences manifested in these approaches. Here are some examples.

The 1980 Vienna Convention

The Civil Code of the R.F.

The parties to a contract must have their commercial enterprises located in different countries for the Vienna Convention to apply. It follows from this that a contract concluded by subjects of different countries whose commercial enterprises are located in the same country is not recognized – within the meaning of the 1980 Vienna Convention – as an international contract of sale. Therefore, the contract would not be subject to the provisions of the 1980 Vienna Convention.

Such a contract, if falling under Russian law, is governed by provisions set forth in the Civil Code of the Russian Federation.

The 1980 Vienna Convention’s application is expressly ruled out in article 2 with respect to specific goods, namely, ships, vessels, hovercraft or aircraft, electricity, and securities.

At the same time, transactions involving such goods are either clearly subject to the Civil Code of the Russian Federation or, as stipulated by the provisions on securities in Article 454(2) of the Civil Code of the Russian Federation are to be governed by general regulations on the sale of goods.

This Convention does not apply to sales of goods bought for personal, family, or household use unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use. Nor does it apply to sales by auction, on execution or otherwise by the authority of law according to article 2.

Civil legislation determines the legal position of the participants in civil commerce, the grounds for the origin and the procedure for realization of the right of ownership and other rights in things, of exclusive rights to the results of intellectual activity (intellectual property), regulates contractual and other obligations and also other property relations and related personal non-property relations based upon equality, autonomy of will and the property independence of the participants [CC RF art. 2(1)]

The 1980 Vienna Convention only governs the formation of a contract of sale and the rights and obligations of seller and buyer arising from such a contract. In particular, it is not concerned with the validity of such a contract, its provisions or usage, or with the effect the contract may have on the goods sold (article 4). Moreover, under the 1980 Vienna Convention, the seller is not liable for death or personal injury caused by the goods to any person.

10.Are there any world-wide contractual standards?

The following documents provide a system of rules especially tailored to the needs of international commercial transactions:

ICC Incoterms

UNIDROIT Principles of International Commercial Contracts

ICC Model International Sale Contract

11. Why is it important to use uniform rules in governing contracts of sale?

The use of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems contributes to the removal of legal barriers in international trade. Such rules also promote the development of international trade on the basis of equality and mutual benefit, and facilitate friendly relations among states.

12. Who prepared the UNIDROIT Principles of International Commercial Contracts and when?

The UNIDROIT Principles were drawn up by the International Institute for the Unification of Private Law in Rome in 1994.

The Working Group, which included representatives of all the major legal systems of the world, was composed of leading experts in the field of contract law and international trade law.

13. Are the UNIDROIT Principles of International Commercial Contracts legislative means of unification of law?

No, they are non-legislative means for unification of law. As they do not involve the endorsement of Governments, they are not a binding instrument, their acceptance depends upon their persuasive authority.

14. What is the purpose of Incoterms?

The purpose of Incoterms is to provide a set of international rules for the interpretation of the most commonly used trade terms in foreign trade. Thus, the uncertainties of different interpretations of such terms in various countries can be avoided or at least reduced to a considerable degree.

Their basic purpose is to explain how responsibility, cost and risk should be divided between the parties in connection with the delivery of goods from seller to buyer.

15. To what type of contracts do Incoterms apply?

Incoterms apply to only one type of contract, namely contracts of sale.

16. What is the scope of Incoterms?

Incoterms are limited to matters relating to the rights and obligations of the parties to the contract of sale with respect to the delivery of goods sold.

17. What are the two most common misconceptions about Incoterms?

First, Incoterms are frequently misunderstood as applying to the contract of carriage rather than to the contract of sale.

Second, they are sometimes wrongly assumed to provide for all the duties which parties may wish to include in a contract of sale.

18. Who compiled Incoterms and when?

The ICC’s Commission on International Commercial Practice, whose membership is drawn from all parts of the world and all trade sectors.

The Incoterms were first published in 1936, since then they have been regularly updated to bring the rules in line with current international trade practices. Amendments and additions were made in 1953, 1967, 1976, 1980, 1990 and presently in 2000.

19. Why have successive revisions of Incoterms been thought necessary?

The main reason for successive revision of Incoterms has been the need to adapt them to contemporary commercial practice.

20. What are the specifics of Incoterms 2000?

They take account of the recent

spread of customs-free zones,

increased use of electronic communications in business transactions, and

changes in transport practices.

21. What is the legal character of Incoterms?

Incoterms are non-legislative means of unifying international rules for the interpretation of trade terms. They do not involve the endorsement of Governments. Hence they are not a binding instrument. Their acceptance depends upon their persuasive authority.

22. Why are Incoterms important and useful?

They facilitate the conduct of international trade.

23. What is the reputation of Incoterms?

Incoterms are now used world-wide.

24. Why do Incoterms now enjoy world-wide recognition?

They respond to business needs everywhere.

25. In what form can a contract for the international sale of goods be drawn?

Either in the form of a single document embracing all the terms and conditions for the sale of goods, or in the form of two documents, one of which supplements the other: special conditions and general conditions.

26. Who compiled the model international sale contract and when?

The International Chamber of Commerce in 1997.

27. What is the scope of the ICC Model International Sale Contract?

This model contract is directed at contracts for the sale of manufactured goods intended for resale, where the buyer is not a consumer and where the contract itself is a separate transaction rather than part of a long-term supply arrangement.

28. What is the legal nature of the ICC Model International Sale Contract?

The model contract is a non-legislative means of unifying contractual conditions for the global export-import sector.

29. Which part of the ICC Model International Sale Contract sets out standard terms common to all contracts of sale?

Part B. General Conditions.

30. Which part of the ICC Model International Sale Contract sets out terms special to a particular contract of sale?

Part A. Specific Conditions.

31. What are the principal methods of payment?

The principal methods of payment are:

payment on open account

payment in advance

documentary collection

irrevocable documentary credit

32. Which documents are required under the ICC Model International Sale Contract?

In the model contract the parties are advised to choose from the following list:

Transport documents in common use, with an indication of the type of transport for which they are appropriateCommercial InvoicePacking listInsurance documentCertificate of originCertificate of inspection

33. What is a force-majeure clause and why is it important?

"Force-majeure" means an event beyond the control of a party to a contract. Such events may include wars or revolutions, fires, floods, epidemics, quarantine restrictions, freight embargoes.

The force-majeure clause of the ICC Model International Sale Contract is intended to allocate losses in the case of commonly recognized instances of force-majeure.

34. How are disputes resolved under a contract for the international sale of goods?

Parties may choose between arbitration and litigation for the resolution of disputes arising under the contracts.

The more usual way is resolution of a dispute by International Commercial Arbitration under the Arbitration clause of a contract.

35. What does the Russian legislation say about the form of transactions?

The form of a foreign economic transaction, if even one of its signatories is a Russian legal person or a Russian citizen, must be subject to Russian law, regardless of where the transaction is concluded.

36. Can a Russian firm conclude a parole contract (i.e.an oral contract)with a foreign company?

No, it may participate only in written contracts duly signed.

"Nonobservance of the simple written form of a foreign commercial transaction shall entail the invalidity of the transaction". [The CC RF art. 162(3)]

IV. LANGUAGE FOCUS

PART 1.VOCABULARY NOTES

см. INTRODUCTION

contract N

All these combinations with the word contract are fully interchangeable and can be translated into Russian as договоркупли-продажи.

The terms contract and article (of a contract)may be used with the following verbs:

The verbsenvisage, providewhen used with the nouns contract and article are interchangeable. The verb stipulatesuggests an obligatory character.

TT The word article may also be used with the following verbs:

NB

In contractual English the word clause is often used as a synonym for article. Both words mean a section of a legal document.

NB

The verbs below form strong partnerships with the noun contract. All five collocations can be translated into Russian as заключить/ать договор, though they are to be used in different situations, thus implying slightly different things:

NB

The collocation a profitable contract means that there will be a profit.

The collocation a lucrative contract means that the profit will be substantial.

см. INTRODUCTION

Below are Russian equivalents of some of the collocations with the word law:

law-abiding

законопослушный, подчиняющийся законам, уважающий законы

law and order

правопорядок

force of law

сила закона

law-breaker

правонарушитель, преступник

law-enforcement agencies

правоохранительные органы

law-giver N

law-maker N

законодатель

contract law

договорное право

law of nature

закон природы

см. INTRODUCTION

by agreement of the parties

по соглашению сторон

NB

No article is used before the word agreement in this instance.

см. INTRODUCTION

Russian equivalents of some of the collocations:

legal advice

совет юриста

a legal aid bureau

юридическая консультация

the legal system of a country

законодательство страны

a legal person

юридическое лицо

legal aspects

правовые аспекты/ моменты

legal barriers

юридические барьеры

legal provisions

юридические положения/ правовые нормы

legal systems

правовые системы

см. INTRODUCTION

substantive ADJ

substance N

– from a substantive point of view по существу

– in regard to substance

NB

These two expressions are interchangeable.

см. INTRODUCTION

expressly ADV

точно, ясно

NB

The word is very frequently used in legal English.

см. RUSSIAN LEGISLATIVE PROVISIONS

provision N

item of agreement, law etc.

положение, условие

legislative provisions

положения законодательства

см. RUSSIAN LEGISLATIVE PROVISIONS

code N

кодекс, свод законов

a civil code

гражданский кодекс

a criminal code

уголовный кодекс

a code of behaviour/conduct/morals/ethics

нормы поведения

Christianity’s moral code

The Civil Code of the Russian Federation (CC RF)

см. RUSSIAN LEGISLATIVE PROVISIONS

an integral part

part and parcel

of smth неотъемлемая часть

NB

These two expressions are almost interchangeable.

см. RUSSIAN LEGISLATIVE PROVISIONS

provide V

предусматривать

e. g.

The Act provides that…

These rules are provided by …

provided by statute

предусмотрено законом

provided CONJ

providing CONJ

при условии что…; если…

см. RUSSIAN LEGISLATIVE PROVISIONS

instead of

in lieu of

in place of

вместо

NB

These expressions are fully interchangeable.

см. UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, VIENNA, 1980

derogate from

юр. частично отменять (закон и т. п.)

частично отказываться от…

см. UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, VIENNA, 1980

according to…

in accordance with…

in conformity with…

in keeping with…

consistent with…

consonant with…

under…

in agreement with…

в соответствии с…; согласно…

NB

In relation to contracts these expressions are virtually interchangeable meaning that they do not contradict any of the terms of the article/ contract.

см. UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, VIENNA, 1980

dispositive ADJ

Ant.imperativeADJ

диспозитивный

обязывающий

NB

to be of a dispositive character

but

to be dispositive in character

см. UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, VIENNA, 1980

in relation to

as to

concerning

in terms of

with reference to

относительно…/ в отношении к…/ что касается… / к вопросу о…

NB

These expressions are virtually interchangeable.

см. UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, VIENNA, 1980

by virtue of

in virtue of

в силу; на основании чего-либо

см. UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, VIENNA, 1980

place N

venue N

место

NB

Both words mean place of action, but the word place has a broader applicability. The word venue is formal and restricted to mean a place of particular action.

см. UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, VIENNA, 1980

seller and buyer

from seller to buyer

NB

The article is often omitted with paired homogeneous members.

см. TERMS THE WORLD TRADES BY

premises N PL

the premises of a business are all the buildings and land that it occupies on one site

premise(also spelled premiss) N

a statement or idea on which reasoning is based

a formal word

e. g. The premise is that they will work harder to improve if they must compete.

NB

The word premise may be used with three prepositions – on, under, from – with almost the same meaning:

– plan smth on the premise that …

– proceed under the premise that …

– start from the premise that …

см. TERMS THE WORLD TRADES BY

– the scope of (application) of

– the sphere of application of

сфера применения

см. TERMS THE WORLD TRADES BY

Russian equivalents of some of the collocations with the noun delivery:

delay in delivery

задержка в сдаче/ в доставке

short delivery

доставка неполного количества

part delivery

частичная сдача

payable on delivery

с уплатой при доставке

overdue delivery

запоздалая доставка

см. INCOTERMS 2000

Russian equivalents of some of the collocations with the word price:

all-round price

цена, предусмотренная договором

contract price

договорная цена

estimate prices

сметные цены

NB

The combination at a price means: it is for sale, but it is expensive.

см. INCOTERMS 2000

Russian equivalents of some of the collocations with the noun payment:

payment on open account

платеж/ расчеты в форме открытого счета

payment in advance

предоплата, 100 % аванс, досрочный платеж

documentary collection

документарное инкассо

Irrevocable documentary credit

(= documentary letter of credit)

безотзывный документарный аккредитив

см. INCOTERMS 2000

см. STRUCTURE OF THE ICC MODEL CONTRACT

см. STANDARD CONTENT OF A SALE CONTRACT

см. STANDARD CONTENT OF A SALE CONTRACT

см. STANDARD CONTENT OF A SALE CONTRACT

см. STANDARD CONTENT OF A SALE CONTRACT

см. STANDARD CONTENT OF A SALE CONTRACT

см. STANDARD CONTENT OF A SALE CONTRACT

см. STANDARD CONTENT OF A SALE CONTRACT

см. STANDARD CONTENT OF A SALE CONTRACT

см. NO PAROLE CONTRACTS

см. NO PAROLE CONTRACTS

см. APPLICABLE LAW

см. QUESTIONS AND ANSWERS

см. QUESTIONS AND ANSWERS

WORD PARTNERSHIP EXERCISES

PART 2. Which word will suit all the three sentences?

♦ 1. Which word will suit all the three sentences?

What is the legal status of international agreements under Russian __________?

Contracts are normally governed by a particular domestic __________ the choice of which is settled by agreement of the parties.

The Convention is based on the assumption that uniform __________, even after its incorporation into the various national legal systems, only formally becomes an integral part of the latter.

Which word will suit all the three sentences?

♦ 2. Which 5-letter word can come before all the following words?

English

barriers

systems

person

character

– – —

position

aspects

provisions

status

♦ 3. What 11-letter noun will form strong word partnerships with all these adjectives?

effective

civil

liberal

– – – – – —

strict

tough

♦ 4. Use the following words in the sentences below:

legal

legislative

non-legislative

legally

legislation

1) What Russian __________ provisions apply to foreign trade?

The Russian Federation has no special code for foreign trade, and the applicable commercial law is primarily Russian civil __________.

2) What is the __________ status of international agreements under Russian law?

3) If an international treaty of the Russian Federation has established rules other than those provided by civil __________, the rules of the international treaty shall apply.

4) Civil __________ determines the __________ position of the participants in civil commerce.

5) Incoterms are __________ means of unifying international rules for the interpretation of trade terms.

6) The use of uniform rules which govern contracts for the international sale of goods contributes to the removal of __________ barriers.

♦ 5. Use the following words in the sentences below:

apply

applied

application

applying

applicable

1) What determines the sphere of __________ of an international agreement?

2) The sphere of __________ of an international agreement is determined by the agreement’s own precepts.

3) What Russian legislative provisions __________ to foreign trade?

The Russian Federation has no special code for foreign trade, and the __________ commercial law is primarily Russian civil legislation.

4) Article 6 of the 1980 Vienna Convention states that the parties to a contract may exclude the __________ of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions.

5) Do the parties to a contract need to refer to the 1980 Vienna Convention if it is __________?

The status of this Convention is such that it __________ whether or not the parties mention it.

6) To what type of contracts do Incoterms __________?

They __________ to only one type of contract, namely contracts of sale.

7) Incoterms are frequently misunderstood as ___________ to the contract of carriage rather than to the contract of sale.

8) This document is intended to be __________ in a uniform manner throughout the world.

9) This provision directly points to an international agreement as a source for determining the governing law __________ to relations with foreign involvement.

♦ 6. Complete the following using the word govern and its derivatives:

1) Why is it important to use uniform rules in __________ contracts of sale?

2) The use of uniform rules which __________ contracts for the international sale of goods contributes to the removal of legal barriers.

3) What are the sources of law _________ contracts for the international sale of goods?

4) This provision directly points to an international agreement as a source for determining the __________ law applicable to relations with foreign involvement.

5) Contracts are normally __________ by a particular domestic law the choice of which is settled by agreement of the parties.

6) Parties to international contracts of sale may also agree that their contract be __________ by the UNIDROIT Principles.

♦ 7. Try to remember what words make collocations with the word binding:

♦ 8. Find three pairs of opposites in the following words:

legislative

dispositive

binding

non-legislative

imperative

optional

♦ 9. What eight-letter word will suit all the following expressions?

♦ 10. All the verbs below form strong partnerships with the word contract. The vowels are missing from each verb. How many can you complete?

♦ 11. The first two verbs on the list form strong word partnerships with the word contract. How many more can you recollect?

♦ 12. All the words below form strong collocations with the words price and prices, but the vowels are missing from each word. How many can you work out?

♦ 13. How many other useful collocations can you make with the word price? The first collocation is given.

♦ 14. Match up the words in each column to make six useful collocations:

♦ 15. Choose one noun to form a strong word partnership with all the verbs in each example: