Preparation before signing the contract

Market feasibility investigation

Before each transaction, we should investigate the feasibility of the transaction, especially before exporting products that have not been done before, and conduct market research.

The main items of the survey include:

Geography, climate, residents' consumption habits

For example, a company in China exported peanuts to Western Europe, and it had to pass through equatorial regions such as the Red Sea Strait, but it did not take special refrigeration. When the goods arrived in Hong Kong, they found that all the peanuts had gone bad.

For another example, many countries have various taboos, which may lead to returns if you don't understand them.

Government regulation in importing countries

For example, exporting goods to Iraq requires permission from the United Nations.

For example: export to countries that impose anti-dumping duties on China.

Market saturation and degree of competition

Transaction cost estimation

For example, exporting goods to some countries in the Middle East or South America sometimes requires thousands of dollars only for embassy certification.

The above projects belong to the commercial category, and everyone has studied them more, so there is no need to talk about them.

2. Customer credit survey

"Look" is not necessarily "letter"

For example, a company visited its customers in person before the transaction, and found that the office of the other company was in a high-grade office building, the chairman was a guest of the China Embassy, and its business outlets and processing plants were huge. However, after the transaction, the other party has been in arrears. After investigation, our office found that the chairman of this customer is really powerful, but the company that signed the contract with China is a company with very small registered capital just established before the transaction. According to the law, China can't claim rights from the chairman's other companies, but can only sue the company that signed the contract with him, so there is no guarantee for China to recover the payment.

"Fame" is not necessarily "strength"

The legal systems of companies in different countries are very different, so don't be confused by each other's "names". For example, in the United States, registering a company with the prefix "international" is no more troublesome than registering a grocery store.

In addition, there is little difference between the registered capital of 6.5438+million yuan and that of 6.5438+million yuan in some countries, and there is no need to subscribe in full or pay a lot of registration fees when registering.

Also, the weak subsidiaries conduct business in the name of the strong parent company, but the parent company cannot take responsibility for any disputes.

"mowing grass" is not necessarily "killing snakes"

Before taking legal measures, some parties are afraid that the investigation will disturb the other party, so they are unwilling to investigate before deciding whether to take measures. But in fact, on the one hand, the investigation of formal investigation institutions will not reveal who the client is, let alone the purpose of the investigation; On the other hand, investigators obtain information through other relevant channels, and issue a report after summarizing it, which will not attract the attention of the investigated company.

"It's good to say yes."

In international trade activities, it is often difficult to ensure the accuracy of information if you only know the credit status of your opponent from one channel, especially through the channel that your opponent deliberately revealed to you. Through formal credit investigation, you can learn about the company through various channels. For example, a foreign company once submitted a credit certificate of "7-digit USD deposit in the bank" to the Chinese side, and the check result between the Chinese side and the bank was indeed the same. But through a comprehensive investigation, we found that the other party is simply a leather bag company, and its bank certificate was cheated. Our investigation channels generally include: company registration department, court litigation records, peer records, real estate management department, financial statistics department, its main customers, local lawyers, telephone registration department and so on. Only when all aspects are well reflected can a higher credit line be given.

I will be in this line of work.

International economic and trade information consultation

I will have certain information communication channels with chambers of commerce around the world, and I can learn about foreign markets and policies;

The main contents of enterprise credit investigation

Enterprise profile

Historical background

Shareholders and capital contribution

Management personnel situation

Financial status

Bank transaction

Operation and customer situation

field test

Other important information

General comments

3) Survey type:

Investigate new customers before dealing with them.

Investigate the customer status after the transaction.

Investigate before deciding what legal measures to take.

Problems needing attention in signing a contract

Choose the right way to sign the contract.

Sign a contract by bidding

Original contract signed by both parties in person.

Sign the contract by fax/e-mail.

Order/quotation+proforma invoice/confirmation letter, etc.

Oral contract

Try to make the terms of the contract clear and standardized, and avoid verbal or simple agreements.

If the other party provides a standard contract, we should pay attention to its relevant terms.

Contract filing management

Pay attention to save written materials, fax paper is not convenient to save.

One case and one volume, filed in chronological order.

Copy and save important files

Pay attention to the positive and negative relationship of the contract.

Problems at present: At present, many companies are still using the format contracts of 1970s and 1980s, which are divided into two sides. Generally, the commercial terms are followed by the general terms. The back clauses of our standard contract are generally beneficial to us, including force majeure, objection claim, application of law and other clauses. However, when signing a contract by fax, many salesmen often send it to the front and not to the back for the sake of cost and time, which makes it difficult for us to protect our interests by using the back clause.

Treatment method:

Sign the original contract

Fax both parties and ask for signature and return.

Make it clear that "see the back for other terms"

Change to unilateral contract

Contract terms

The first part of the contract should be completed.

The name should be written in a standard way, and there should be no clerical errors.

Including Chinese name and mbth.

The address should be written, not just by phone or fax.

Otherwise, when arbitration or litigation occurs, the documents cannot be delivered, which will affect the procedure.

The description and specifications of the goods should be clear and complete.

Specification and quantity should be clearly stated to avoid disputes.

If you send samples before the transaction, you should also try to close the transaction according to the specifications and avoid closing the transaction according to the samples.

If the transaction must be based on samples, the samples should be sealed for inspection;

Select the appropriate price terms

The role of terminology: to determine the allocation of responsibilities, risks and expenses.

Commonly used terms: FOBCIFCFR

Problems that should be paid attention to in FOB terminology:

The buyer shall be informed in time after shipment, otherwise the buyer shall bear the responsibility. For example, a domestic company failed to inform the buyer in time after loading, which led to the buyer's failure to apply for insurance for the ship's departure, and then an insurance accident occurred in transit, and the buyer suffered losses.

Matters needing attention in CIF terminology:

CIF is also the port of shipment, and the risk is transferred.

The CIF destination port should clearly determine the freight, otherwise it will cause trouble or increase the cost. For example, a China company and a Brazilian company agreed that the price term was "CIF Manaus", but found that Manaus was not a seaport, but an inland river port in Brazil. Finally, China had to go through the relevant formalities according to the contract and transport it to the river port, which increased a lot of expenses. For another example, there are two "Portland ports" in the United States, one on the east coast and the other on the west coast. Freight rates vary greatly, and there are many similar situations in the world.

Carefully determine the mode of transportation and the time limit for shipment.

The mode of transportation is not only related to the transaction cost, but also related to the risk of foreign exchange collection. Generally speaking, air transport is more risky to collect foreign exchange, and it is easy to have both goods and money, because air bills of lading are not documents of title, and customers often don't need to cash them before taking delivery.

Once the time limit for shipment is determined, it shall be strictly observed; If it is really impossible, we should negotiate with the buyer to change the shipment date.

Take a guaranteed way to collect foreign exchange

Advance payment is the safest for sellers, but it is difficult for buyers to accept it.

bank letter of credit

The bank's reputation is relatively safe.

However, letter of credit fraud is also a common situation and involves many problems. If necessary, we can teach letters of credit in the future.

Bank collection

It belongs to a commercial reputation. Whether it is a domestic collecting bank or a foreign collecting bank, it only provides a service and does not assume the first payment responsibility.

Attention should be paid to prevent foreign collecting banks from maliciously colluding with customers. We have dealt with similar cases. The customer appointed the collecting bank and paid documents at sight. The seller sent the documents to the collecting bank designated by the buyer through the Bank of China, and the collecting bank handed the documents to the customer to pick up the goods without receiving the payment. According to the legal relationship, China has no contractual relationship with the collecting bank and cannot directly claim rights from foreign banks; China and domestic banks belong to the principal-agent relationship, but domestic banks are not at fault and can be exempted from liability. Therefore, other customers have the opportunity to bargain.

Inspection clause

CIQ test

Manufacturer's self-inspection

Inspection by foreign impartial inspection institutions

Buyer's inspection (passenger inspection clause)

This involves the burden of proof in the event of disputes in the future. If CIQ inspection is agreed as the basis for the final determination of the quality of the goods, the evidence will be very effective after one party produces the commodity inspection certificate.

Try to avoid the terms of arrival inspection and buyer's inspection, which will give the other party the opportunity to refuse to pay on the pretext of quality defects.

clause of arbitration

Model clause

Any dispute arising from or related to this contract shall be submitted to China International Economic and Trade Arbitration Commission for arbitration in accordance with its arbitration rules in effect at the time of applying for arbitration. The arbitral award is final and binding on both parties.

Try to write it on the front.

Objection claim clause

Scope of accepting claims: claims that are the responsibility of carriers or insurance companies are not accepted.

Claim basis: the claim basis is the inspection report of the authoritative inspection organization agreed by both parties.

Claim period: within 30 days after the goods arrive at the port of destination.

Claim method: written claim

Application of law, texts and other provisions

Problems needing attention in the performance of international trade contracts

Review the letter of credit and prepare documents.

Remove "soft terms", such as passenger inspection certificate.

Special statements required by the letter of credit, such as legal jurisdiction.

The document is consistent and simple.

Inventory and packaging

When the buyer specifies the raw material supplier, prevent being cheated.

For example, an American businessman orders clothes from a domestic company and specifies that he wants to use fabrics from a Korean company. As a result, the American company cancelled the contract under some pretext after China produced it. According to our investigation, it turns out that the American company colluded with the Korean company to sell the overstocked cloth for it.

Goods purchased domestically for export shall be inspected before shipment.

In many foreign quality claim cases we handle, the products of domestic suppliers do have quality problems, and the salesmen of foreign trade companies do not go to the factory to supervise the assembly in person, let alone supervise the production. After the goods are delivered, foreign businessmen will demand compensation, which will not only cause losses, but also lose customers. Therefore, foreign trade companies must take good care of domestic suppliers and try their best to solve problems in China.

Pay attention to packaging

About 60% of the quality claim disputes we handle are due to packaging problems, and some are restricted from selling (mainly food) in importing countries because of poor packaging; Some goods were damaged due to poor packaging. Therefore, whether it is self-produced goods or purchased goods, we should pay great attention to product packaging.

Handle well the relationship with freight forwarders and shipping companies

Sign written contracts with freight forwarders to reduce verbal agreements.

When the buyer designates a smaller shipping company, prevent collusion between them.

After the shipping company delivers the goods without bill of lading, who does the seller claim rights from?

Claim against the shipping company

Claim against the buyer

Handle the relationship with insurance companies well

Pay attention to the insurance contract and documents.

Pay attention to the special statement of the insurance company.

exceptions

How to handle the claim procedure?

How to deal with the quality objection raised by the buyer

Don't promise and answer easily.

For example, in the original contract, the buyer should provide the inspection report of the inspection organization agreed by the seller, but after receiving the goods, the buyer sent a letter saying that there was a quality problem and it was being inspected by XX organization. The salesman immediately wrote back and said: wait until the test results come out to do the research. This means that both parties have changed the inspection terms through consultation, which will be very passive in future arbitration.

Don't be afraid to refuse just because you are an old customer.

Cross-reference foreign claims item by item according to the objection claim clause.

Not answering easily does not mean not answering in time. For foreign claims, the first thing to do is to find contracts and compare them item by item.

You should consult a lawyer in time and get involved as soon as possible.

How to deal with the buyer's default in payment

After the goods arrived at the port of destination, the buyer refused to take delivery and made unreasonable demands.

The buyer failed to pay for the goods and demanded to continue the delivery.

Refusing to pay or delaying payment for goods on the pretext of overstock, quality defects, delayed delivery, insufficient funds, market changes, etc.

When giving the other party a grace period, it is necessary to sign a memorandum or a written agreement and add some additional terms to the repayment agreement. Such as fine clause, direct arbitration clause, guarantee clause, etc.

Take legal measures as soon as possible: supervision and coordination, arbitration and litigation.

Pay attention to the statute of limitations.

Restrictive clause in the contract in which the buyer raises quality objection to the seller.

Provisions on restricting the bill of lading from raising written objections to the carrier

Provisions on notifying insurance companies when insurance accidents and time-limited policies occur

The limitation of action for claiming compensation from the carrier is 1 year.

The limitation for the carrier to recover from the third party after compensation is 90 days.

The limitation of action for international trade contracts is 4 years.

The limitation of action for claiming compensation from the insurance company is 2 years.

Interruption and suspension of limitation of action

In addition, in international trade contracts, we should also pay attention to the following legal terms:

① liquidated damages clause: the first clause of liquidated damages cannot be omitted, the second clause should be comprehensive, and the third clause can be high, but not too high, because too high will invalidate the clause, which is equivalent to letting the court decide for itself.

(2) Commodity inspection terms: The commodity inspection certificate is the basis for the buyer and seller to settle accounts, calculate customs duties and judge right and wrong. The contract shall clearly stipulate the inspection standard, inspection period, sealed inspection or current inspection, and the time limit for raising objections and replying to the quality and quantity of the subject matter to avoid delay by the importer.

③ Force Majeure clauses: It is best to list the specific scope, proof conditions and notice period of force majeure in international contracts as far as possible, so as to avoid the importer from making excuses for not paying.

(4) Dispute settlement clause: For many reasons, such as difficulties in implementation abroad, it is best to stipulate arbitration clause. Terminology expression should be standardized, and ambiguity should not cause trouble. For example, "All disputes arising from this contract shall be submitted to China International Economic and Trade Arbitration Commission for arbitration in accordance with its arbitration rules. The award is final and legally binding on both parties. "

⑤ Applicable provisions of law: For those who are unfamiliar with international treaties and foreign laws in China, China law shall be applied as far as possible to resolve disputes.

⑥ Contract language and its validity clauses: It is best to specify which language shall prevail in the contract, especially for contracts with complicated contents such as buying and selling equipment. The contract can also stipulate the conditions for the contract to take effect, such as favorable terms such as taking effect after paying a deposit.

(7) Prevent infringement of foreign patent rights. Since there are many such disputes in China at present, we should pay attention to avoiding the risk of foreign exchange collection caused by infringement and clarify the legal responsibility for sample processing and equipment export.

(8) The clause of "retention of ownership of goods" can be stipulated. Under the condition of not affecting normal trade, it is agreed that the goods will still be owned by the exporter before the importer pays off the full payment.

Further reading: How to buy insurance, which is good, and teach you how to avoid these "pits" of insurance.