At present, the global epidemic continues to bring uncertainty to enterprises, and many enterprises in Zhejiang Province are in a more complex foreign trade environment and face multiple risks。In "Zhejiang" there is "aid" - "cloud" on the legal service lawyer groupMembers provide professional answers and accurate services for the problems reflected by the current foreign trade enterprises, and help enterprises to prevent and resolve the risks related to import and export trade。
The following are the typical related legal questions and answers reflected by the new phase of the enterprise。
问题1
Enterprise Questions:
FOB Shanghai, the exporter has paid the freight forwarding fee in Shanghai and agreed to telex release of the bill of lading, due to the impact of the epidemic, the Indian importer has not paid the local agent sea freight, the goods can not be telex release。How can I recover the payment and protect the interests of the exporter？
Lawyer's answer:
The essence of this question is whether the importer has fulfilled the contract，The reason why the goods cannot be telex released is caused by the importer's failure to fulfill the obligations necessary for the delivery of the goods，The exporter shall follow the terms of delivery and payment as stipulated in the contract，Urge them in writing to pay and take delivery of the goods，Otherwise, the cancellation of the contract and related losses caused by the importer's failure to perform the contract will be borne by the importer。If you have already taken out export credit insurance, it is recommended to report the insurance in time and defend your rights according to the requirements of the insurance company。
Special risk warning: FOB trade terms only the buyer and seller agree that the freight is borne by the buyer, in the case that the buyer does not bear, the carrier may claim freight, demurrage, demurrage and other costs from the shipper。Such losses shall also be declared to the importer as their responsibility。
问题2
Enterprise Questions:
The customized goods on FOB Shanghai cannot be received due to the epidemic prevention and control measures of the importing country, and the importer requires to send the whole set of customs clearance documents in advance. However, can the importer provide the documents in advance and how to protect the interests of the exporting enterprises when the importer has not paid the payment in full？
Lawyer's answer:
First, what epidemic prevention and control measures in the importing country should be found to cause the failure to receive the goods，What is the relationship between sending a complete set of customs clearance documents required by the importer and the epidemic prevention and control measures，Whether it is necessary;secondly，Need to know what the contractual payment and document delivery procedures are;Only if the above basic facts are clear，Further agree on the corresponding safeguard clauses，To determine the specific measures to be taken and change the contract agreement。
问题3
Enterprise Questions:
FOB term, sales contract stipulated "Ethiopian law", is there any hidden danger or what is the hidden danger？
Lawyer's answer:
It is agreed that "Ethiopian law" shall be the applicable law of the contract. This choice itself does not mean that there is no hidden danger, but only that the Chinese side is not familiar with the Ethiopian law and cannot judge the corresponding rights and obligations of the Chinese side as the seller under the contract according to it。
问题4
Enterprise Questions:
When overseas countries are closed due to the epidemic and documents cannot be delivered, how should enterprises deal with the risk of non-payment of letters of credit under Article 36 of UCP600？
Lawyer's answer:
UCP600 Article 36 Analysis:
In this article, "A bank" is not limited to issuing bank, therefore, this article also applies to advising banks in our country.。Obviously, the notification bank located in China does not currently have the situation and risk of business interruption due to the epidemic。Therefore, the risk of non-payment comes from the issuing bank, which is only analyzed below。
Conditions for the issuing bank to refuse payment:
(1) The outbreak constitutes an event beyond the control of the Bank and leads to disruption of the bank's operations;(2) The credit expires during a period of interruption of the issuing bank's operations。You can't have one without the other。
Current possible realities:
The first case: the issuing bank's business is interrupted due to the epidemic, and there are two cases for the expiration of the letter of credit。
First, the letter of credit expires during the period of business interruption, in which case, we believe that the issuing bank can invoke UCP600 Article 36 for non-payment and exemption。
In another case, the credit did not expire during the period of the issuing bank's business interruption, such as before the business interruption, but the issuing bank has not honoured。In this case, in our opinion, the issuing bank cannot invoke UCP600 Article 36 for non-payment and escape liability。
Here we need to analyze the expiry of letter of credit。According to Article 6 of UCP600, the validity period of the credit means the deadline for presentation of documents by the beneficiary。因此，It is suggested that Chinese enterprises pay close attention to whether overseas issuing banks may have business interruption during the deadline for submission of documents before shipment，If you think it's possible，Recommended suspension of delivery，Customers are required to pay by wire transfer，Otherwise, the bank may refuse to ship the goods on the grounds of the risk of non-payment in Article 36 of UCP600，Thus avoiding the situation in which the above mentioned banks refuse to pay and are exempted from liability under Article 36 of UCP 600。
Risk prevention measures: modify the letter of credit to extend the validity period;Insure export credit。
问题5
Enterprise Questions:
The importer destroys our products on the grounds of product quality problems and does not provide any supporting documents, how to protect the rights？
Lawyer's answer:
It is recommended that the customer provide proof of quality problems within a certain period of time，And provide a legal basis for the destruction of our products，If the customer does not provide at that time，Or we have objections to the evidence provided by them，Compensation may be negotiated with the client，If negotiations fail，Consider applying for arbitration under the contract (if there is an arbitration clause) or filing a lawsuit。
问题6
Enterprise Questions:
If the buyer does not pay for the goods and the seller does not deliver the bill of lading, the freight forwarder appointed by Shanghai releases the goods without permission, how should the buyer defend his rights？
Lawyer's answer:
First of all, it is necessary to find out and collect the facts and evidence that the forwarder releases the goods to the buyer without the bill of lading, on this basis, it can Sue the forwarder for the responsibility of releasing the goods without the original bill of lading;You can also claim payment from the buyer。Or the letter insurance report (if you have purchased insurance), according to the letter insurance requirements。If the insurance pays, then the insurance subrogation recovery。
问题7
Enterprise Questions:
The buyer of Ecuador has paid the deposit, but has not paid the balance. If the buyer affected by the epidemic requests to return the goods to Hong Kong, how can the seller defend its rights？
Lawyer's answer:
First of all, it is recommended to commercially persuade customers to accept the goods, because although the market demand is not strong at present, the goods may face shortages when the market begins to recover。因此，Hope customers seize the opportunity of demand recovery;secondly，It is recommended to inform the client legally，The goods have arrived at the port，The pandemic did not prevent the contract from being fulfilled，Buyers can still pick up and sell;Once more，It is recommended to check whether export credit insurance is taken out，If already insured，In case the customer refuses to pay the balance，It is recommended to report insurance in time。
问题8
Enterprise Questions:
The goods arrived at the port of destination in Sydney on April 3, 2020, but the bill of lading was not delivered to the buyer due to the reasons of SF International Express, and the buyer submitted the bill of lading on April 20。If the goods cannot be picked up and the series loss (demurrage) is caused during the period, how should the seller claim compensation to SF Express？
Lawyer's answer:
1. It is suggested to verify the reasons why SF Express cannot deliver the express in time, and judge whether SF Express is at fault;
2, it is recommended to verify the destination port free storage time and demurrage fee amount;
3. It is suggested to verify the contract of carriage with SF Express and lodge a claim with SF Express according to the loss situation and the contract of carriage;
4. The claim letter shall be sent by EMS express to the manager of the branch of SF Express, which belongs to the express collection point, and stamped with the postmark stamp, which shall be retained as evidence, and then followed up by phone after the delivery arrives。
问题9
Enterprise Questions:
The exchange rate locking contract signed between the buyer and the bank, but the order is cancelled due to the epidemic, and the buyer cannot fulfill the exchange rate locking contract with the bank. What should I do？
Lawyer's answer:
It depends on the contract with the bank。If the order is indeed cancelled due to the epidemic, resulting in the purpose of the forward settlement and sale agreement cannot be achieved, it is recommended to communicate with the bank in time to cancel the agreement。