2020-08-05
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Table 6.1
Import/Export Documentation
| I.Air freight; commercial | Air Waybill |
| (Air) Cargo Arrival Notice | |
| House Air Waybill | |
| Shipper’s Letter of Instruction | |
| II.Chartering: sea transport | Charter Party: a) Barecon “A” b) Linertime |
| Chartering Disbursements Account | |
| Nubaltwood Charter Party and Bill of Lading | |
| Orevoy Charter Party and Bill of Lading | |
| Standard Time Sheet (Short Form) (Voyage Charter Party) | |
| Standard Statement Sheet (Oil and Chemical Tank Vessels) (short form) (Voyage Charter Party) | |
| III.Commercial documents: international trade | Certificate of Origin: a) Arab-British Chamber of Commerce b) European Community Certificate of Origin |
| Export Invoice | |
| Health Certificate | |
| Master Document | |
| Preshipment Inspectation Certificates: a) Exsport Declaration b) Inspection Report c) Inspection Report/Clean Report of Findings | |
| Proforma Invoice | |
| Quality Certificate | |
| Weight Certificate | |
| ATA Carnet | |
| Ata Application Form | |
| ATA Bank of Insurance Company Guarantee | |
| Single Administrative Document (SAD) | |
| IV.Dangerous cargo | Dangerous Goods Note - SITRO |
| Export Cargo Shipping Instruction (Special Cargo And Dangerous Goods) | |
| Shipper’s Declaration for Dangerous Goods By Air | |
| V.Finance: international trade | Customer Lodgement Form for The Foreign Bill and/or Documents for Collection |
| Bill of Exchange | |
| Customer Lodgement Form for International Money Tranfer | |
| Customer Lodgement Form (Order) for Express International Money Transfer | |
| Customer Lodgement Form for a Documentary Credit (Request to open a Documentary Credit) | |
| Credit (irrevocable) The Documentory | |
| VI.Insurance: marine and cargo | Certificate of Insurance |
| Companies Marine Policy | |
| Lloyd’s Marine Policy | |
| VII.Miscellaneous documents | Application for Berth |
| Memorandum of Agreement (for Sale and Perchase of Ships) - Saleform | |
| Bill of Sale | |
| VIII.Road transport: international | CMR International Consignment Note |
| TNT Ipec Consignment Note | |
| Equipment Condition | |
| Equipment Handover Agreement | |
| IX.Shipboard certificates | Cargo Manifest |
| Cargo Ship Safety Construction Certificate | |
| Cargo Ship Safety Equipment Certificate | |
| Certicate of Class | |
| Declaration of Age | |
| International Load Line Certificate | |
| X.Shipping commercial document | Bill of Lading: |
| a) Short Form Bill of Lading | |
| b) Combined Transport or Port To Port Bill of Lading | |
| c) Container Bill of Lading | |
| d) Direct or With Transhipment Bill of Lading | |
| e) Liner Bill of Lading | |
| f) Original Bill of Lading | |
| g) Through Bill of Lading | |
| h) Clean Bill of Lading | |
| Sea Waybill | |
| Shipping Instruction (General Cargo) | |
| Shipping Note | |
| Standard Shipping Note | |
| Certificate of Shipment | |
| Letter of Indemnity | |
| Arrival Notification | |
| Collection/Delivery Note | |
| Delivery/Shipment Note Bill | |
| Packing List | |
| Release Note | |
| Unpacking Note |
| XI.Data folders for processing the export/import consignment | Export Data Folder |
| Import Data Folder | |
| Forwarding Operations Control Folder |
THEME 7. REGULATION OF INTERNATIONAL COMMERCIAL DISPUTES
International disputes
Applicable law
Competent tribunal
International Commercial Arbitration
Execution of legal and arbitral decisions
Choosing a regulation process
International disputes
International disputes cover a greater complexity than conflicts which occur between companies of the same nationality, applying their national law before their national courts of law. In truth, imagine that you are in conflict with an Iranian purchaser. Do not think that the conflict which you systematically oppose will resolve itself in your national courts, by applying your national law, and even less that it could be clear cut before an international tribunal implementing a universal international law.
The laws which govern international disputes are sometimes of a national order, sometimes of an international order. But these questions can equally be governed by the parties I the contract thanks to the principle of the autonomy of their willingness which allows them to decree the rules applying to their contractual relations themselves. In this way, the parties can, through their contract, make the applicable choice of law and the competent tribunal in the case of dispute. Moreover, if they wish, they can substitute a discount for the competence of the national judge and submit it to a private judge. This is what is known as arbitration.
Applicable law
It could be a facility for the states to require the national judge to always apply its own internal rules, even for international contracts. However, this would amount to denying all specifications for situations of an international character. Also, different state legislators have progressively admitted themselves that the judge can apply, to a certain extent, (foreign law must not oppose public order for example) another law which in its own situation resents an element of extranity. It results that the applicable law is not necessarily that of the submitted judge.
In view of this observation, it is fundamental to establish under which law is the contract subject. Depending on the applicable laws, the results, rights and obligations of the contract can vary enormously. For example, some countries require the contract to be written, others not. According to certain laws, people not included in the contract have specific general rights which, according to another law are not the case. It is therefore essential to establish from the beginning which is in force for a contract.
a) The principle of the intention of the parties
According to the principle of the intention of the parties, recognised in the large majority of states, they are free to organise the contract and to create obligations between themselves (as long as respect the rules relating to good behaviour and public order). This autonomy gives them a large freedom regarding the choice of law which governs their agreement.
The two parties are in a position to choose one of three possibilities:
· retain the law of the exporting country: This will very often be the wish of the seller that sees his rights applying themselves, given that it concerns whoever would know it the best. This is not however always the best solution. In fact, some legal systems, such as french or belgian protect the purchaser more strongly,
· retain the law of the importing country: This right is perhaps more interesting for the exporter as it is less restricting, but then it necessary to know and control it, as it could be dangerous to be submitted to a totally or partially unknown regulation,
· retain the law of a third country: This choice enables legal nationalism to be neutralised. It is often a choice used in a commercial concern for compromise or convenience reasons (in the case where the competent tribunal belongs in this third country).
In the head of exporter, swiss law is often recommended in this respect as it is rather favourable to the exporter and above all it has the advantage of appearing as a neutral state which is an asset for the parties in the behaviour of commercial negotiation. Generally it is advised to choose the law of a country belonging to the same legal system as your own.
It is possible that the parties have not indicated in the contract the applicable law for one of the following reasons: general sales conditions and the conflicting sales cancelling themselves, the negotiators establishing an arbitration clause leaving judges to decide its care, or more simply, the parties have not made a choice by oversight or ignorance. Not choosing the applicable right can have serious consequences as the parties accept what is applied of the arrangements which they do not understand. In fact many legal systems can find themselves in competition: seller's rights, purchaser's rights, rights in the contract's place of execution. The silence of the parties will drive the submitting judge to a dispute to try and find signs (place of formation of contract, carrying out, payment) in order to join the agreement to a legal system by finding the implicit willingness of the co-contractors, or will refer themselves to an international agreement that the purchaser's and seller's countries have ratified. It results in an undeniable loss of time as well as a further incertitude which are the little favourable elements of business requirements.
b) International agreements
There is no universal system to decide on the applicable law. Faced with legal insecurity which results in a multitude of rules for internal conflict certain states are brought together to agree on a communal rule applying to them.
Two international conventions have been drawn up in order to establish international rules on the subject of law applying in international contracts. However, these conventions are principally ratified by European states and therefore concern quasi-exclusively European business relations.
1. The Hague Convention
The Hague Convention of 15th June 1955 on the law applying to sales of an international nature of goods controlling the application of the law in the seller's country. However, exceptions to the rule exist. For example, quoting that the convention determines that the law of the purchaser's country applies when the seller is displaced to it's client's country in order to conclude the contract.
2. The Rome Convention
The Convention of Rome of 19th June 1980 on the law applying to contractual obligations recommends the principle of contractual freedom. Failing that, the contract will be governed by the law of the country with which it presents the narrowest links, that is to say the country of the contractor which supplies the provision qualified as "characteristic" to know most generally: the seller's law in a sales contract; the agent's law in the case of a distribution contract etc.
Competent tribunal
There is no international and supranational tribunal above states for settling disputes which concern international contracts (at least on the level of state jurisdiction). From then on, failing such bodies, disputes are confined to a national judge. However, the parties have the choice regarding the jurisdiction which will settle the dispute. Failing to choose on their part, the judge is bound by the international convention that the countries of the parties have ratified on the subject.
a) The principle of the intention of the parties
The clause for allocating the jurisdiction nominates the tribunal which is geographically competent to settle legal disputes. The parties can choose the jurisdiction of the seller's country, the purchaser's country, or a third country. It appears evident that the most favourable solution for the seller comprises choosing the court of their domicile, and conversely for the purchaser (lower costs, easier following of proceedings, local culture,...).
It is also important to note that the chosen jurisdiction can be a different nationality to the law chosen by the parties. In this way, one could imagine a dispute between a German seller and an Austrian purchaser is judged on the basis of German law in a Swiss court.
b) International agreements
The Brussels Convention of 27th September 1968 between the member states of the European Economic Community concerns judicial competence and the carrying out of decisions on civil and business matters. It is necessary to add that another international Convention, the Convention of Lugano extends to the EFTA countries (European Association of Free-Trade: Iceland, Norway, Switzerland and Liechtenstein) the principles agreed on by the Brussels Convention on the subject of competence and the execution of legal decisions.
The Conventions of Brussels and Lugano give the rules applicable to the subject of competence in national courts to regulate disputes on civil and business subjects. In this way for lack of a clause in the contract on the competent court, is in principle entitling the judge in the state in which the defendant is resident to adjudicate. Next to the general competence rule, there are special competence rules. Thus the Brussels convention also lays down a second possibility "before the court of the place where the obligation which serves on the basis of the demand which has, or must be, carried out".
In the absence of a supranational tribunal which could settle disputes connected to international contracts, these are submitted to a national judge, and that even for the subjects for which there is an international treaty unifying the applicable laws. The danger is therefore present that the international agreements are interpreted differently according to what the national judge submits, this sometimes having a natural tendency to interpret international treaties depending on its own conceptions in its country.
