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INTERNATIONAL SALES LAW - seminar 2004 ISL I ISL: objectives, functions and structure II INTERNATIONAL SALES LAW - seminar 2004 ISL I ISL: objectives, functions and structure II Management of information on ISL III Contractual Risk Management in Transnational Sales Transactions IV Management of risk of contractual disputes V Management of risk of contract breach VI Management of risk of loss of or damage to the goods VII Management of risk of changed circumstances VIII Case study IX Case studies

ISL I II IV V VI VIII IX Management of risk of contract breach ISL I II IV V VI VIII IX Management of risk of contract breach (risk of non-performance, of risks in sales law Default distribution delay or non-conformity) CISG art. 71: CISG art. 74: Damages for breach of contract by one party consists of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the other party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract. CISG art. 77: … (2) If the seller has already dispatched A before the relies on a breach of the goodsparty who grounds described contract must take measures as in the preceding paragraph become are reasonable in the circumstances evident, he may prevent the handing to over mitigate the loss, including loss of the goods to the buyer even profit, resulting from document though the buyer holds a the breach. If he whichfails to take such measures, the party in entitles him to obtain them. The breach may relates reduction present paragraph claim a only to thein the rights damages goods as between which the in the amount by the buyerloss should have been mitigated. and the seller. . . ISC - duty to co-operate (art. 60) - right/obligation to specific performance (art. 46. 1 and 62) - right to suspend performance (art. 71) - substitute performance (art. 46. 2) - repairment (art. 46. 3) Contracting Contract law - price reduction (art. 50) - avoidance (art. 49, 64, 72, 73) - damages (art. 74 -77, 79) - CISG art. 25 -26, 28, 45 -52, 61 -65, 71 -88

ISL Management of risk of contract breach Default distribution of risks in contract law ISL Management of risk of contract breach Default distribution of risks in contract law I II IV V VI PECL UPICC ARTICLE 8: 105: Assurance of Performance UPICC ARTICLE 7. 4. 13 (Agreed payment for non-performance) (1) A party who reasonably believes that there will be a fundamental non. ARTICLE 7. 1. 6 a clauses) PECL (1) Where theby the other partythat(Exemption adequate assurance of pay performance contract provides may party who does not perform is to due demand a specified. ARTICLEthe excludes onewithhold such non-performance, own performancesum to 8: 107: Performance Entrusted to Another) his the and meanwhile may party’s performance of A clause which limits or aggrieved party for liability for non-performance aggrieved permits one party to renderirrespective ofsubstantially different party long as such reasonable belief continues. performance so is entitled to that sum performance its actual harm. or which A party who entrusts performance of the contract to anotherbe invoked if it from what thenotwithstanding any agreement to the contrary the specified other party reasonably expected may not person remains (2) Where this assurance is not provided within a reasonable time, the party However, performance. (2) responsible for unfair to do so, having regard to the purpose of the could be be reduced to a reasonable amount where it is grossly excessive sum may grossly demanding it may terminate the contract if he still reasonably believes that contract. to the harm resulting from the non-performance and to the other in relation be a fundamental non-performance by the other party and gives there will circumstances. notices of termination without delay. ISC VIII IX Contracting - PECL art. 6: 111 and chapters 7 to 9 - UPICC chapters 6 and 7 - CENTRAL TLDB chapters VI-IX - CISG art. 25 -26, 28, 45 -52, 61 -65, 71 -88

ISL Management of risk of contract breach Contractual allocation of risks in contracting practice ISL Management of risk of contract breach Contractual allocation of risks in contracting practice I II ISC III IV V VI VIII IX (- bid bonds) - performance bonds - payment conditions and securities - liquidated damages and other ”hostages” - exemption clauses - PECL art. 6: 111 and chapters 7 to 9 - UPICC chapters 6 and 7 - CENTRAL TLDB chapters VI-IX - CISG art. 25 -26, 28, 45 -52, 61 -65, 71 -88

ISL Management of risk of contract breach Contractual allocation of risks in contracting practice ISL Management of risk of contract breach Contractual allocation of risks in contracting practice I II Rules on International Standby ISC Practices (ISP 98) ICC Publication No 458 III IV V VI VIII IX ICC Uniform Rules for Demand Guarantees (URDG) ICC Publication No 458 (- bid bonds) - performance bonds - payment conditions and securities - liquidated damages and other ”hostages” - exemption clauses ICC Uniform Rules for Contract Guarantees (URCG) ICC Publication No 325 - PECL art. 6: 111 and chapters 7 to 9 - UPICC chapters 6 and 7 - CENTRAL TLDB chapters VI-IX - CISG art. 25 -26, 28, 45 -52, 61 -65, 71 -88

ISL Management of risk of contract breach Contractual allocation of risks in contracting practice ISL Management of risk of contract breach Contractual allocation of risks in contracting practice I II ISC III IV V VI VIII IX (- bid bonds) - performance bonds - payment conditions and securities - liquidated damages and other ”hostages” - exemption clauses - PECL art. 6: 111 and chapters 7 to 9 - UPICC chapters 6 and 7 - CENTRAL TLDB chapters VI-IX - CISG art. 25 -26, 28, 45 -52, 61 -65, 71 -88

ISL Management of risk of contract breach Contractual allocation of risks in contracting practice ISL Management of risk of contract breach Contractual allocation of risks in contracting practice I II IV PAYMENT V VI VIII IX

ISL Management of risk of contract breach Contractual allocation of risks in contracting practice ISL Management of risk of contract breach Contractual allocation of risks in contracting practice I II IV check/ draft payment order (SWIFT) clean payment forms of PAYMENT V VI VIII IX documentary payment

ISL Management of risk of contract breach Contractual allocation of risks in contracting practice ISL Management of risk of contract breach Contractual allocation of risks in contracting practice I II check/ draft III IV clean payment ICC Uniform Rules for Collections payment order (URC)(SWIFT) ICC Publication No 522 forms of PAYMENT V collection VI VII confirmed VIII IX unconfirmed documentary payment documentary credit/ letter of credit/ L/C ICC Uniform Customs and irrevocable Practice for Documentary Credits (UCP 500), revocable ICC Publication No 500

ISL Management of risk of contract breach Contractual allocation of risks in contracting practice ISL Management of risk of contract breach Contractual allocation of risks in contracting practice control over the goods I II performance guarantee in advance repayment guarantee III IV V VI VIII IX ICC Uniform Rules for The ICC Model Contract Guarantees, International Sale Contract Rulesdocuments: (URCG) transport for ICC Uniform PAYMENT ICC Publication No 556 ICC Publication No 325 ICC Publication ICC Uniform Rules for No 325 Demand Guarantees terms Rules onbills of lading Demand Guarantees (URDG) B. GENERAL CONDITIONS on International Rules No bills of lading Standby - electronic 458 (URDG) ICC Art. 5. 2 Publication Practices International Standby waybills Practices ICC Publication No 458 ”If the parties have agreed on payment in(ISP 98) without further advance, sea (ISP - No 458 98) ICC Publication mate’s receipt indication, it will be assumed that such advance payment, unless otherwise ICC advance payment must agreed, refers to the full price, and that the. Publicationair waybill be - No 458 received by the Seller’s bank in immediately available funds at least 30 - consignment note (CIM/CMR) days before the agreed date of delivery or themultimodalwithin the agreed - earlist date transport document delivery period. If advance payment has been agreed only for a part of the - warehouse warrant contract price, the payment conditions for the remaining amount will be determined according to the rules set forth in this article. ”

ISL Management of risk of contract breach Contractual allocation of risks in contracting practice ISL Management of risk of contract breach Contractual allocation of risks in contracting practice control over the goods I II IV V VI VIII IX performance guarantee in advance simultaneous exchange for goods/documents PAYMENT The ICC Model terms International Sale Contract ICC Publication No 556 B. GENERAL CONDITIONS Collections ICC Uniform Rules for Art. 5. 4 (URC) ”If the parties have agreed on payment by ICC Publication No 522 documentary collection, then, unless otherwise agreed, documents will be tendered against payment (D/P) and the tender will in any case be subject to the Uniform Rules for Collections published by International Chamber of Commerce. ” repayment guarantee by parties themselves or through representatives through a third party COD CAD

ISL ORGALIME S 2000 Management of risk of contract breach Contractual allocation of risks ISL ORGALIME S 2000 Management of risk of contract breach Contractual allocation of risks in contracting practice GENERAL CONDITIONS for the supply of mechanical, electrical and electronic productsthe goods control over I PAYMENT II IV V VI in advance Clause 18. performance guarantee repayment guarantee ”Unless otherwise agreed, the purchase price shall be paidby parties themselves or with one third at the simultaneous formation of the contract and one third when the Supplier notifies the Purchaser that through representatives exchange for the Product, or the essential part of it, is ready for delivery. Final payment shall be made goods/documents is delievered. when the Product PAYMENTPayments shall be made within 30 days of the date of the invoice. ” COD terms gradually through a third party ORGALIME S 2000 Clause 19. VIII IX ”Whatever the means of payment used, payment shall not be deemed to have been effected before the Supplier’s amount has been fully and irrevocably credited. ” CAD

ISL I II IV V VI VIII IX Management of risk of contract breach ISL I II IV V VI VIII IX Management of risk of contract breach Contractual allocation of risks in contracting practice The ICC Model control over the goods International Sale Contract International Contract performance guarantee ICC Publication 556 Publication No No in advance repayment guarantee B. GENERAL CONDITIONS Art. on Art. 5. 1 setting payment 5. 3 open account as theby parties themselves or default ICC Uniform Customs and simultaneous solution, Practice for Documentary ”If the parties exchange for payment by through representatives have agreed on goods/documents Credits (UCP 500), documentary the parties unless otherwise To the extent that credit, then, have agreed that payment is to PAYMENT agreed, theby a bank guarantee, for a. Buyer is to. Publication No 500 COD ICC provide, at be backed buyer must arrange the documentary terms credit in favour of the Seller to be issued by through gradually least 30 days before the agreed date of delivery third least a or at party reputable bank, subject to within the argeed delivery the Uniform Rules on 30 days before the earliest date Customs and Practice for Documentary CAD Art. 5. 5: International Standby Practices credit Credits published by the bank guarantee subject to the ” period, a first demand International Chamber (ISP 98) of Commerce, and to Demand Guarantees published by be notified atdocumentary credit least 30 days Uniform Rules for ICC Publication No 458 before the agreed date of delivery or or a standby letter of at least 30 International Chamber of Commerce, days before the earliest such within or to the Uniform credit subject either to date Rules the argeed demand guarantee ICC Uniform Rules. Unless otherwise. ICC Uniform Customs and open account the delivery period. agreed, Customs and Practice Documentary Credits Documentary Practice for Demand Guarantees for be payable at sight and published letter documentary credit Chamber of Commerce, in either case shall standby by the International Credits (UCP 500), (URDG) issued by a reputable bank. ” allow partial shipments and transhipments. ” of credit ICC Publication No 458 ICC Publication No 500

ISL Management of risk of contract breach Contractual allocation of risks in contracting practice ISL Management of risk of contract breach Contractual allocation of risks in contracting practice I II IV V VI PAYMENT terms ORGALIME S 2000 control over the goods GENERAL CONDITIONS performance products for the supply of mechanical, electrical and electronic guarantee in advance RESERVATION OF repayment guarantee - warehouse warrant TITLE - bills of Clause 21. lading by parties themselves or simultaneous - electronic bills of lading through representatives exchange for ”The product shall remain the property of the Supplier until - sea waybills paid for goods/documents that such retention of property in full to the extent COD is - mate’s receiptapplicable law. valid under the through - at waybill The Purchasergradually request of the Supplier assist him in shallair the a third - any measures necessary to protect party takingconsignment note (CIM/CMR) the Supplier’s - title multimodal transport document CAD credit to the Product in the country concerned. The retention of title shall not affect the passing of risk under documentary credit Clause 9. ” transport documents: VII open account VIII IX control over the goods security demand guarantee standby letter of credit retention of title

ISL Management of risk of contract breach Contractual allocation of risks in contracting practice ISL Management of risk of contract breach Contractual allocation of risks in contracting practice control over the goods I performance guarantee II in advance III PAYMENT terms VIII IX through a third party gradually project financing financial leasing COD CAD credit VI VII by parties themselves or through representatives simultaneous exchange for goods/documents IV V repayment guarantee documentary credit factoring/ forfaiting control over the goods open account security demand guarantee standby letter of credit retention of title

ISL Management of risk of contract breach ORGALIME S 2000 Contractual allocation of risks ISL Management of risk of contract breach ORGALIME S 2000 Contractual allocation of risks in contracting practice I GENERAL CONDITIONS for the supply of mechanical, electrical and electronic products The ICC Model II International Sale Contract TIME FOR DELIVERY. DELAY ICC Publication No 556 III IV V VI VIII IX ISC Clause 13. B. GENERAL CONDITIONS Art. 10 ”If the Product isdelivery, non-delivery and remedies(as defined in Clauses not delivered at the time for delivery thereof Late 10 and 12), the Purchaser is entitled to liquidated damages from the date on ” 10. 1 When there is whichin delivery of any have taken. Buyer is entitled to claim delay delivery should goods, the place. The damages egual to 0, 5% be payable at a rate of 0. 5 per cent of the liquidated damages shallor such other percentage as may be agreed purchase price for each completed week of delay. The liquidated the Buyer of the price of those goods for each complete week of delay. Wheredamages so notifies theshall not exceed 7. 5 per cent ofagreed date of delivery, damages Seller within 15 days from the purchace price. If only part of the Product is delivery or liquidated damages within will run from the agreed date of delayed, thefrom the last day shall bethe calculated on that part of purchase price which the Seller after such part agreed period of delivery. Where the Buyer so notifiesis attributable to 15 days of of agreed date of delivery, damages will run from the used as intended by the Product as cannot in consequence of the delay bedate of the notice. (- bid bonds)Liquidated damages shall not exceed 6: 111 andprice of the delayed goods or the 5 % of the - PECL art. parties. . . ” - performance bonds such other maximum amount as may be agreed. ” chapters 7 to 9 Clause 14. - payment conditions - CISG art. 25 -26, 28, - UPICC chapters 6 and securities ” 10. 4 In case of termination of the Contract under article 10. 2 or 10. 3 then in 45 -52, 61 -65, not and payable under article 10. 1, the Buyer is has 71 -88 The Purchaser addition to and shall forfeit - liquidated damagesany amount paid or 7 his right to liquidated damages if he entitled to lodged a claim in writing for such damages within not months after the time - CENTRAL TLDB claim damages for any additional loss six exceeding other ”hostages” when delivery should have taken goods. ” 10 % of chaptersof the non-delivered place. the price VI-IX - exemption clauses

ISL Management of risk of contract breach Contractual allocation of risks in contracting practice ISL Management of risk of contract breach Contractual allocation of risks in contracting practice I II IV V VI VIII IX NL 01 E ORGALIME S 2000 ISC GENERAL CONDITIONS for the supply of machinery and other mechanical, electrical and electronic equipment. GENERAL CONDITIONS for the supply of mechanical, electrical and electronic products Liability for Defects Consequential Losses ” 34. The Seller shall have no liability for defects save as stipulated in Clauses 21– 33. This applies to any loss the defect may cause, such as loss of production, loss of profit and other consequential economic loss. This limitation of the Seller’s liability shall not apply, however, if he has been (- bid bonds) guilty of gross negligence. ” - PECL art. - performance bonds - payment conditions and securities - liquidated damages and other ”hostages” - exemption clauses ” 43. Save as elsewhere stated in these conditions there shall be no liability for either party towards the other party for loss of production, loss of profit, loss of use, loss of contracts or for any consequential or indirect loss whatsoever. ” 6: 111 and chapters 7 to 9 - UPICC chapters 6 and 7 - CENTRAL TLDB chapters VI-IX - CISG art. 25 -26, 28, 45 -52, 61 -65, 71 -88

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