国际商务合同复习资料10.doc

国际商务合同复习资料

2、如何降低外汇风险
How to reduce the risk of foreign exchange?
①the seller can pay in the currency of his or her own country or more stable and relatively stronger currency
②The buyer can pay in weak or soft currency
③Payment in a unit of account (such as a special drawing right SDR)
④Use of a factor
⑤Use of forward and options contracts in a process known as hedging

3.为什么保护知识产权很重要？P71-P72 +后果
Why the protection of intellectual property is very important?
Unique designs, methods, names, and symbols constitute industrial and intellectual property. The exclusive rights to such property are valuable. For example, a name can serve not only to distinguish your goods are services but also to extend the buyer’s trust to your entire product or service line.
If another trader use your name or copy your design without your consent, you may lose not only sales but also the value of your reputation. You may even lose your exclusive rights to your name, work, or design. So the contractual protection of your exclusive rights to your industrial and intellectual property is very important.

4、合同纠纷解决 要扩展 (page 113)
Contract dispute resolution
Communication, waiver, modification and negotiation 沟通、豁免、修改、谈判
Communication between you and your foreign business partner is essential to keeping the relationship. 你们和你的外国商业伙伴之间的交流是保持关系是至重要原因的。
Negotiation, followed by written confirmation of any waiver or modified contract term, is the most effective means of resolution in terms of cost and time谈判,紧随其后的书面确认任何放弃或修改合同期内,最有效的手段是在成本和时间方面决议
1) Mediation调解
The process of Mediation is in essence a negotiation that is facilitated by an object third person.调解的过程,本质上是一次借助于一个对象是第三人的谈判
Advantages and disadvantages: the focus of mediation is on the future relationship of the parties.优点和缺点:调解的焦点是对未来双方的关系。
This process is informal, relatively easy and fast, and less costly than arbitration or trial.这个过程被非正式的、相对简单和快速,仲裁费用少于或审判。
Procedures: the parties typically choose a mediator or are referred to mediation by a court before litigation is pursued.

2) Arbitration
Arbitration is an adjudicatory process that is held before an object third party who renders a decision based on the adversarial presentations of the disputing parties.仲裁是一个评判过程举行前呈现一个第三方的对抗性的演讲

The process of arbitration is controlled by laws, rules, and regulations specific to the forum chosen for the arbitration. Thus the procedures will vary depending on the forum selected by the parties仲裁的过程的控制是由法律、规则和特定规定。因此,程序将取决于法庭当事人选择
3) Litigation
Litigation is costly, time consuming, and even if ultimately resolved in your favor still does not address a primary concern. The courts of many countries are biased in favor of their own nationals, and foreigners rarely, if ever, obtain satisfaction. The best advices is to avoid litigation altogether诉讼是昂贵的,耗时的,即使最终解决有利于你，但是诉讼仍然没有解决当事人主要关心的问题。很多国家的法院诉讼都有利于自己的公民而不利于国外公民，如果可以的话，,皆大欢喜的情况，最好的建议完全是为了避免诉讼

5、如何使合同条款更加严谨？
How to tighten your clauses? P88 10选6

6、仲裁与诉讼的比较
Advantages to arbitration 仲裁的优势
1、 It is less expensive and faster than a court trial
2、 The parties tend to have more control over the choice of the decision makers
3、 Many of the rules governing procedures and admission of evidence are relaxed in arbitration proceedings
Disadvantages to arbitration 仲裁的不足
1、 In many countries, arbitration is unavailable or is just being developed
2、 The relatively low cost of arbitration when compared with trial proceedings does not mean that arbitration is cheap
3、 The arbitration will resolve past differences, but often will not build a continuing relationship
Litigation to Advantages 诉讼的优势
1、 In many countries , the court systems are well-developed and effective, you may just get a quick and fair trial
2、 You may even be a awarded costs and attorney’s fees as the winning party
3、 You may find that enforcement is fairly easy

Disadvantages to litigation 诉讼的不足
1、Litigation is more expensive and slower than arbitration
2、The parties tend to have less control over the choice of the decision maker
3、Many of the rules governing procedures and admission of evidence are strict in Litigation

7、买方的隐形成本 P16——P19 写满即可 不用全部抄下
The Buyer’s Hidden Costs
一、International shipping→P16
1) Customs clearance→If the seller is not responsible for clearing goods through customs, you will be
2) Insurance→You should consider obtaining against the risk of loss of damage to the goods in transport, particularly if a substantial amount of money is involved
3) Interruption of business→You should consider whether you will have any interruption in your own business when the goods arrive, whether for training, installation. Testing, maintenance, or otherwise
4) Hospitality Cost→Whether you are buying goods or services, you may incur costs for entertaining a visiting seller
5) Third Party Expenses
6) Lost sales or production Delays→If satisfactory goods do not arrive or services are inadequate, you may lose your own sales or you may have to delay your own production
7) Temporary Facilities→If a shipment is late, you may have to retain an empty storage facility for the imminent but uncertain arrival of the goods
8) Replacement Goods or Services→A delay in performance may require you to pay for replacement goods for services
二、The Seller’s Hidden Costs 卖方的隐形成本
1) Product Adaptations→International markets may require modification of your goods of service to follow national laws or consumer cultural preferences
2) International Shipping→P18
3) Customs Clearance→Depending on the deal you are able to make, you may be responsible for clearing goods through customs in your own country and possibly through customs in the country of importation
4) Insurance→You should consider obtaining insurance against the risk of loss or damage to the goods in transport, at least until the goods are delivered to the buyer
5) Third-Party Expenses
6) Temporary Facilities
7) Mitigation Expenses→If a contract for the sale of goods fails completely, you will have to find a new buyer

8、卖方如何保护自己的知识产权？
sellers protection against infringement P73小标题下
The seller how to protect their intellectual property?
（1）First, Make the application to register. Never voluntarily allow sales of your goods in a country where you have not applied to register your intellectual property with a government agency.
(2)Your contract should specify that you have registered or have a pending registration of the property rights in the buyer’s country.
(3)Add an incentive for the Buyer’s help in stopping infringement.
(4)Make a liquidated damages clause.
(5)Seller should know the Buyer’s business background before making the sale.
(6)Seller must be certain to follow the progress of the buyer’s sales.

9、in what circumstances it is an invalid contract 什么情形下的合同是无效合同
1) One party induced conclusion of the contract though fraud of duress, thereby harming the interests of the state
2) The parties colluded in bad faith, thereby harming the interests of the state, the collective or any third party
3) The parties intended to conceal an illegal purpose under the guise of a legitimate transaction
4) The contract harms public interests
5) The contract violates a mandatory provision of any law, of administrative regulation
53条
1) Excluding one party a liability for personal injury caused to the other party
2) Excluding one party liability for property loss caused to the other party by its intentional misconduct or gross negligence
3) 《合同法》　第五十二条有下列情形之一的，合同无效：
　　（一）一方以欺诈、胁迫的手段订立合同，损害国家利益；
　　（二）恶意串通，损害国家、集体或者第三人利益；
　　（三）以合法形式掩盖非法目的；
　　（四）损害社会公共利益；
　　（五）违反法律、行政法规的强制性规定。
　　第五十三条合同中的下列免责条款无效：
　　（一）造成对方人身伤害的；
（二）因故意或者重大过失造成对方财产损失的