Export International trade law PDF
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Added on 2021-07-05
Export International trade law PDF
Added on 2021-07-05
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STUDENT ID : 13001193 BATCH CODE : HF1591LLB MODULE CODE : LWA90010 – 6 WORD COUNT : 3620EXPORT & INTERNATIONAL TRADE LAW ASSINGMENT
Page 1 of 15Over the ages trade has evolved, giving way to set standards and terminology provided by various organisations and conventions that oversee the smooth functioning of international trade, ensuring that the rights, duties, obligations, and liabilities of all the parties concerned including the seller and the buyer are dealt with in a fair manner. One such governing body to introduce a set of terms that ‘Traders, simply by referring to them, could legitimately be deemed to have adopted the full range of duties and rights these “trade terms” imply’1is the International Chamber of Commerce. The trade terms published by the International Chamber of Commerce in current usage as of January 01, 2011 are INCOTERMS 2010. Other international instruments that are specifically relevant to seaborne trade include the The Hague Rules2; The Hague – Visby Rules3; The Hamburg Rules4; and The Rotterdam Rules5. Within the United Kingdom, the primary statutes that govern sea trade are the Carriage of Goods by Sea Acts (CGSA) 1971 and 1992, and the Bills of Lading Act (BOLA) 1855, as well as the Marine Insurance Act 1906. The Sale of Goods Act (SGA) 1979, and the Sale and Supply of Goods Act (SSGA) 1994 are the foundations upon which all trade laws function, and thus play a key role in international trade as well. CIF contracts are one of the most commonly used type of contracts in international trade, apart from others such as Ex-works contracts, Ex-ship contracts, FAS contracts, and FOB contracts. An immensely popular term in trade, CIF is an acronym for Cost Insurance Freight. Thus, the price of goods in CIF contracts include freight and 1Chuah J C T, Law of International Trade: Cross-Border Commercial Transactions (5thedn, Sweet & Maxwell 2013) 34 2International Convention for the Unification of Certain Rules Relating to Bills of Lading, Brussels 1924 (the Hague Rules) 3Brussels Protocol (Hague – Visby Rules) 4Convention on the International Carriage of Goods by Sea 1978 (Hamburg Rules) 5UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the Rotterdam Rules)
Page 2 of 15insurance charges6. The case of The Julia [1949] held that a contract said to be on CIF terms shall be construed as such, unless the contract includes a number of clauses which indicate otherwise7. Lord Atkinson, in providing what is often known as the best judicial definition of CIF contracts in Johnson v Taylor Bros outlined the main obligations by which a vendor is bound upon entering into a CIF contract8. Accordingly, the key feature that differentiates CIF contracts from all other contracts which facilitate international trade, is the transfer of documents, and the significance attached to it. The question that persists is if a CIF contract is merely a sale of documents9, for if it were to be so, then it would be immaterial if the goods were actually delivered to the buyer as the contractual obligation of the seller would be complete the moment the documents were acceptably tendered10. Smyth v Bailey Sons stated this to be a ‘peculiarity’ that although the transfer of documents usually renders the sale to be completed, even if the goods themselves 6Ross T Smyth & Co Ltd v TD Bailey Son & Co [1940] 3 All ER 60 7Comptoir d'Achat et de Vente du Boerenbond Belge S/A Appellants; v Luis de Ridder Limitada Respondents (The Julia) [1949] A.C. 293 8Johnson v Taylor Bros & Co Ltd [1920] AC 144 pg 155-6 – Lord Arkinson: “First, to make out an invoice of the goods sold. Second, to ship at the port of shipment goods of the description contained in the contract. Third to procure a contract of affreightment under which the goods will be delivered at the port contemplated by the contract. Fourth, to arrange for an insurance upon the terms current in the trade which will be available for the benefit of the buyer. Fifthly, with all reasonable despatch to send forward and tender to the buyer these shipping documents, namely, the invoice, bill of lading and policy of assurance, delivery of which to the buyer is symbolical of delivery of the goods purchased, placing the same at the buyer’s risk and entitling the seller to payment of the price.” 9Arnold Karberg & Co v Blythe, Green, Jourdain & Co [1915] 2 KB 388 – According to Scrutton J, a CIF contract may be regarded as a sale of documents relating to the goods concerned as opposed to the sale of goods themselves. 10Carr I, International Trade Law (5thedn, Routledge 2014) 11-12
Page 3 of 15have not yet reached the buyer, this does not mean that a CIF contract is a sale of documents and not goods; and in the event the goods were to be lost, then the rights under the documents of transfer, mainly the Bill of Lading (BOL) and the insurance policy, would be in a business sense, the equivalent of the goods11. While Lord Atkinson enumerated the obligations of the seller in Johnson v Taylor Bros12, INCOTERMS 2010 concisely provided that apart from the sellers duties (which involves packaging, procuring and paying for export clearance, the carrier, and marine insurance, and delivering the cargo to the carrier); the buyer has separate obligations including the procuring and payment of import and customs clearances at the port of destination, payment of relevant taxes, and delivery of goods to the final destination. The parties involved, Pabilis Silvera (Silvera) and Organic Food Imports Inc. (OFI), conducting their trade through CIF contracts, have arrived at a number of obstacles that need to be attended to with reference to the laws above that apply to contracts of this nature, including the contract of carriage that Silvera has entered into with Nisshin Shipping (Nisshin). The question speaks of three different consignments under the same contract, each affected by a separate turn of events that ought to be addressed individually. In general circumstances, with regard to goods shipped under a CIF contract, the seller has to ensure that the goods shipped correspond with the description in the contract, complying with Section 13 of the SGA 1979, which makes conformity with the description an implied term13. Where the goods do not conform to the description, 11Ross T Smyth & Co Ltd v TD Bailey Son & Co [1940] 3 All ER 60 pg 68 & 70 Lord Wright 12Johnson v Taylor Bros & Co Ltd [1920] AC 144 pg 155-6 13Sale of Goods Act 1979, section 13 - Sale by description. (1)Where there is a contract for the sale of goods by description, there is an implied term that the goods will correspond with the description. (2)If the sale is by sample as well as by description it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.
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