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(TACN 6) CHƯƠNG 1+2, EXW: nghĩa vụ và rủi ro chuyển giao tại đia điểm cơ…

- - - - When must?
        
        date of dispatch from factory
        
        date of loading onto a ship
        
        date when the goods should arrive in destination
      - Delay
        
        Excusable delay: epidemics, floods, fire, strike, quarantine restrictions, unusually severe
        -> Force Majeure/ The act of God
        
        Non-excusable delay
      - Consideration from the ex: how long to +
        
        - Obtain supplies:: nguồn cung
        - Manufacture the goods: sản xuất
        - Package the goods: đóng gói
        - Arrange pre-shipment inspection: kiểm tra trước giao hàng
        - Transport goods to the agreed point of delivery: vận chuyển đến địa điểm giao hàng
      - Consequences
        of miscalculating
        
        Exporter: Pay a heavy penalty
        Importer:
        
        Too early delivery: tie his money up in unused goods
        
        Too late delivery: big financial loses
      - Fix how?
        
        for a number of days after the date of contract coming into force
        
        any calendar date
      - KHÁC
        Coming into force
        
        the date which the last precondition is meet on
        
        Preconditions include (7):
        
        Receipt of import and/or export approval
        
        Receipt of foreign exchange approval from a central bank
        
        Issuance of LC or bank guarantee
        
        Making of a down-payment by the buyer
        
        Issuance of an insurance policy
        
        Issuance of Certificate of Origin
        
        Delivery of plans, drawings or other documentations by buyer
      - KHÁC
        Signature date/
        Date of execution/
        Date of conclusion
      - Cut-off date
      - Grace period
        "Time is of the Essence" clause
        
        between the delivery date
        and the penalty period
      - Buyer's remedies (2)
        if unexcused delay
        
        Ex must make delivery as agreed
        
        Clvil-law countries
        
        Court issues a decree of specific performance
        
        Ex pay the buyer compensatory damages
        
        Common-law countries
        
        The amount of damages is decided after answering:
        -> Tổn thất được chứng minh là do vi phạm
        -> Tổn thất là hợp lý
        -> Người mua đã làm nó nhỏ nhất có thẻ
      - Better solution to late delivery
        
        A. Liquidated damages (tiền bồi thường định trước)
        
        Be paid per day (week or month) of late delivery
        -> To compensate the buyer fairly for any delay in delivery
        -> Enforceable everywhere
        -> Subject to increase or decrease in some legal systems
        
        B. Penalties (tiền phạt vi phạm)
        
        Be usually very high
        -> To terrorize the exporter into punctual delivery
        -> Not enforceable in E law or other common law systems
        
        C. Quasi /kwei-zai/- Indemnity (tiền tương đương bồi thường)
        
        Be fixed by exporter
        
        Be usually very low
        -> To relieve the exporter's responsibilities for delay in delivery
        -> Enforceable everywhere
        -> Be considered/ deemed "unconscionable"
    - - A (the goods are handed over to the carrier)
        B (... shipped on board in the exporter's country)
        C (... offloaded in the buyer's country)
        D (arrived at the buyer's warehouse)
      - Why is it important?
        
        control and responsibility go together.
        
        the place and time delivery affect the payment.
        
        risk and ownership often pass at the place of delivery.
      - Place is the point at which exporter passes responsibility for the goods to buyer
        
        Depend on the terms of trade chosen by both parties
    - - be subject to the nature of goods, customer's wishes, terms of export sales contract, safety,..
      - Inland (adj/adv): by road, by rail, by mail, or by mixture
        
        Overseas (adj/adv): by air, by sea, by barge (xà lan)
      - be related to 3 factors
        
        Proper/ Appropriate +packaging
        
        Problems:
        
        all countries: packaging of dangerous goods is subject to special regulations
        
        some national laws: require all containers fumigated
        
        agriculture-based countries: some packaging materials are strictly forbidden (VD: hay, straw, rice husks)
        
        Shipping mark/ Correct marking
        
        Đất nước xk: Country of origin
        
        Ký hiệu khối lượng: Weight Marking
        
        Số lượng hộp và kích cỡ: Number of Package and Size of Case
        
        Ký hiệu vận chuyển (nhiều hình) : Handing Marks
        
        Ký hiệu, địa điểm và số đơn hàng bên nhận: Consignee's Mark, Destination and Order Number
        
        Correct documentation
        
        The most important shipping doc: Bill of Lading (BL)
        
        be issued by a carrier to a shipper
        
        details the type, quantity and destination of the goods being carried
        
        Three functions (hợp đồng xe chuyên chở/ hóa đơn hàng/ quyền sở hữu hàng)
        
        Contract of Carriage (entered into between the "carrier" and the "shipper or cargo owner" to carry out the transportation of the cargo
        
        Receipt of Goods issued by the carrier/ their agent to the shipper/their agent as proof of receipt of the cargo
        
        Document of Title of the Goods
        
        Types:
        
        A marine BL (vận đơn đg biển) (negotiable)
        -> goods loaded on a named vessel
        -> negotiable: BL must be written to the order of the consignee and stamped & signed by the consignor.
        
        An air waybill (vận đơn hàng ko)
        
        A rail consignment note (chứng từ vận tải đường sắt)
        
        A road consignment note (chứng từ vận tải đường bộ)
        
        A combined transport BL (vận đơn vận tải liên hợp)
        
        KHÁC
        
        Unclean/ Clean +shipping documents:
        
        Người Carrier inspect (the goods + packaging + general appearance)
        
        Common note (ghi chú: content leaking/ packaging broken/ packaging soiled (bẩn)/ goods damaged/ packaging badly detented (lõm)
        
        Not all notes are considered to be "claused" (VD: second-hand packaging materials used/ unprotected/ unboxed/ packaging repaired)
    - - Risk
        is passed
        
        What?
        
        risk of loss and damage
        risk of goods doing harm to a third party
        
        When?
        
        risk and insurance go hand in hand
        
        the party facing a risk shall arrange insurance
        
        be transferred from ex to im at the point of delivery
      - Ownership and title
        
        take place at any point (by the way signature of contract and final payment of the goods)
- - - - Order size
      - Specifications
      - Packaging
      - Terms of delivery
      - Terms of payment
      - Warranty provisions
      - ....
  - - - a) Payment in advance
        Prepayments
        Cash in advance
        
        Wire transfer (chuyển khoản)
        
        Credit cards
        
        Check
      - b) Collection
        
        Clean collection
        
        Documentary collection (7)
        
        Parties: buyer/ seller/ remitting bank (nhờ thu)/ collecting (thu hộ)
        
        The buyer can eiter accept or pay on presentation of documents to collecting bank
        
        Process: Agreement-> Present -> Forward-> Present-> Accept -> Advise -> Advise
      - c) Open account
        
        Minimize the risk:
        
        Verify the integrity of the buyers through a credit investigation
        
        Consider the political and economic conditions of the importer's country
        
        Third party security for payment
      - d) LC
        
        Protect both parties
        
        A bank on behalf of the buyer commit to make payment to the seller, provided that the term sand conditions stated in the LC have been met and verified through the presentation of all required doc
        
        Two principles:
        
        Autonomy ( thanh toán tiền against chừng từ/ trả bất cứ tranh chấp nào giữa 2 bên/ ko liên quan đến hợp đồng bán hàng)
        
        Strict compliance
        
        Only pay if the shipping docs are exactly in line with the buyer's instructions
        
        When..refuse to pay under LC, it will cite a discrepancy
        -> Seller: provide ..missing/ ask the buyer to instruct...to change the terms of LC
        
        Parties:
        
        Applicant
        
        Beneficiary
        
        Issuing bank
        
        Advising bank
        
        Steps
        
        Issuing (4)
        
        sign a contract
        
        ask...to open LC
        
        ask a bank in the exporter's country to advise the exporter....opened
        
        advise the exporter that...
        
        Presentation (5)
        
        seller hands over the goods........ to carrier
        
        carrier transfer shipping doc........ to seller
        
        seller presents the shipping doc ......to the ad bk
        
        the ad bk checks the doc and (if appropriate) pays the ex
        
        the ad bk notifies the issuing that credit has been presented and forwards the shipping doc
        6, the issuing bk transfers necessary funds to the ad bk
    - - To speed up payment, most ex offers a discount for early payment
        -> Buyers save on the invoice price
        -> Seller improves his cash flow
        
        Negotiate a chain of date if delivery involves partial/ periodic+ shipments and spare parts supply
    - - slow/late payment is subject to + payment of interests and the cost of any delay along the payment route
      - clause "payment shall be deemed to have been made only when the contract sum is paid into the seller's bank account and is at the seller's full disposal
    - - Clause to make sure payment is made on time
      - if delay happens, the exporter is usually compensated for loss
    - - Clause
        
        "If..., the seller shall be entitled to receive interest on the amount unpaid during the delay period.
        
        The interest shall be + ...percentage point + above +the discount rate of NHTW của nước bên bán + at an annual rate"
      - Third-party security
        (2 forms)
        
        Export credit insurance
        
        offered by insurance company/ /governmental export credit agencies
        
        exporter pay insurance premium
        
        protect from commercial risks and political risks
        
        Varies to:
        
        type of goods
        
        creditworthiness of the buyer
        
        political stability of the buyer's company
        
        fee: between 0,5-1% of the invoice price
        
        Dis and Ad:
        Dis:
        
        long wait to be compensated (6 months)
        
        does cover 100% of the original invoice price
        
        Ad:
        
        protect against unfamiliar customers
        
        protect for high-stake transactions
        
        give exporter a competitive edge when buyers are reluctant to spend money on payment guarantee
        or tie up money in LC
        
        A bank guarantee
        
        The buyer (Principal)
        
        The seller (Beneficiary)
        
        The bank (Guarantor)
        
        4 business situation risks (từ 2 góc độ người bán+mua):
        1. Non-payment -> The bank pays 100% of the contract price
        -> Fee: 0,5%-1%
        2. Revocation -> Protect a company against the risk of project falling behind because a tender is withdrawn (bảo vệ người mua khỏi rủi ro thất bại dự án sau đó khi hồ sơ thầu bị rút
        -> Fee: 1,5%- 5%
        3. Non-performance -> Contract fails to perform
        -> Fee: 5%-10%
        4. Losing prepayment (ko thanh toán trước)
        -> Ensure an agree percentage of the contract amount prepaid
        -> Fee: 100%
        
        2 types of Bank guarantee:
        1. Demand guarantee
        
        The beneficiary must not meet serious, objective conditions before claiming payment of the guarantee
        -> Be subject to abuse and Court arise
        
        2. Conditional guarantee:
        The claim shall be supported by:
        
        A decision of the court of first instance (quyết định bởi tòa sơ thẩm)
        
        An arbitral award (a decision by a court of arbitration)
        
        The approval of the Principal in writing to the claim
        -> Harsh conditions