Guide to Legal Contracts = Английский язык для юристов договорное право. Учебное пособие по английскому языку для студентов юридических вузов

entered into the agreement, the insurer will not need to fulfil their contractual obligations unless a certain event occurs which triggers the need for these obligations to be performed.

A triggering event in this type of an aleatory contract could be a natural disaster, which destroys part of the insured property. In the unlikely event that this does happen, the insured party can request that the insurer performs their obligation under the contract, and this performance is usually provided in the form of financial reimbursement for the damage caused.

However, it’s possible that the insured party pays for this protection without ever needing the counterparty to perform their part of the contract. This is because the contract’s performance is contingent on the chance event happening, and if that event doesn’t happen, the insurance company will never need to pay out to compensate for it.

This is distinct from most other types of contracts whereby both parties must fulfil their obligations automatically, not just if a certain event occurs.

  Business interruption insurance is an aleatory insurance contract. The insured can only expect to receive payment when and if there’s a qualified event leading to its business being interrupted.

  If you purchased an automobile and wanted to reduce the risk of financial loss due to theft, you will then need an aleatory insurance agreement where you insure yourself against the possibility of car theft. The insurance company will pay a certain amount of money in the event the car is stolen (the uncertain event triggering the insurance company’s obligation).

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UNIT 9

I N T E R N A T I O N A L C O N T R A C T S

Helpful Words and Notes

letter of credit – аккредитив

shipment – отправка, доставка грузов, транспортирование, перевозка грузов

clearing – безналичные расчеты freight – стоимость перевозки

replacement value – стоимость страхового возмещения, оценка по восстановительной стоимости

A contract is international when it has certain links with more thanone State.Internationality concernsallcasesinvolvinga choice between the laws of at least two distinct States. Hence the notion of conflict of laws (otherwise referred to in terms of private international law, especially in Civil law countries), used to identify the set of rules and criteria, amongst the two or more theoretically applicable “conflicting” national laws, the application of which is the most suitable for governing the parties’ relations. The above will obviously be the case when parties from different countries have entered into a contract, but it is also the case when a contract contains, irrespective of the parties’ citizenship or nationality, one or more foreign elements, putting it in contact with one or more legal systems. For instance, such may be the case when parties are based in different countries, or when a contract is to be executed abroad. Conversely, a contract cannot be classified as international, and is therefore to be deemed purely domestic, when all of its significant elements are connected with one State only. In this regard, it must also be noted that when one or more significant elements of a contract are connected with different territorial units within the same national State (e.g. Quebec and Labrador in Canada, or Mas-

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sachusetts and California in the United States, or Queensland and Victoria in Australia), such fact does not constitute internationality of the contract.

Additionally, the mere circumstance of the parties’having chosen a foreign State’s law to govern their contractual relationship is not per se an element sufficient to classify a contract as international. The ascertainment of internationality is thus an exercise that always implies careful case-by-case analysis.

PURPOSE OF INTERNATIONAL LAW

Increased interstate participation is what led to the development of international law. Its primary goal is to keep international peace and security among various states. It also helps in:

  promotion of cordial ties between the member nations (members of the international community, for example, the United Nations),

  In ensuring fundamental human rights,

  to resolve global issues through collaboration between nations.  The United States should refrain from threatening or using force against the territory of any other state in order to guarantee the

people’s right to self-determination,

  Among its duties is the employment of peaceful means to resolve international issues.

Types of International Contracts

Examples of international contracts include:

  International distribution agreements  Intellectual property licenses

  Investment agreements

  International sales contracts  Supply agreements

  Letters of credit

  Franchise agreements  Joint venture agreements  Development agreements

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INTERNATIONAL TRADE CONTRACT

An international trade contract isa contract for acommercial transaction, or a contract made by a trader for the purpose of his business. International trade contracts are those in which each party intends to act in the exercise of its trade or profession. The question whether a party is acting in the exercise ofits trade orprofession depends onthe circumstances of the contract, not on the mere status of the parties.

The same person may act as a trader or professional in relation to certain transactions and as a consumer in relation to others.

The definition comprises both the commercial activities of merchants, manufacturers or craftsmen (trade transactions) and the commercial activities of professionals, such as lawyers or architects (professional services).

Insurancecontractsandcontractstransferringorlicensingintellectual property rights between professionals also fall within the compass of trade contracts, as do agency or franchise contracts. For example, a contract between a German entrepreneur and a Pakistani commercial agent constitutes an international trade contract. Such may also be the case when a joint venture agreement is made between a French fashion garment manufacturer and a Thai supplier of textiles.

The negotiation, drafting and operation of a business under an internationalbusinesscontractcanbeverydifferentfromdoingbusiness within a home country. Differences in laws, language, customs, currency, credit practices and many other important elements of a business transaction can have a significant impact of the success of the transaction. The following are some of the main issues that should be addressed in any international agreement.

Essential elements of an international agreement for the purchase of goods will include: identification of the parties, identification of the goods being purchased, statement of the price of the goods identifying what currency is used to determine price, statement of method of payment and the payment terms, statement of time for delivery, identification of method of delivery, statement of insurance requirements, statement of who bears risk of loss and when risk of loss shifts, statement of what constitutes a breach and/or a default of the agreement and statement of when, where and how contract disputes will be resolved.

All the above said has appropriate titles of contract clauses.

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The titles below should be placed in the proper blanks starting each abstract with explanations.

Identification of the Parties / Language / Currency / Letters of Credit and Other Forms of Payment / Pre-Shipment Inspection / Time For Delivery / Terms for Delivery, Insurance, Freight and Risk of Loss Insurance / Clearing Customs / Acceptance or Rejection of Delivery / Time for Payment /Applicable Law

_______________  It is important that any international business contract clearly identifies the parties to the agreement. Identification of individuals, corporations, limited liability companies, partnerships, joint ventures or other forms of doing business can have a significant impact on the legal rights of the parties to the transaction and can affect the laws used to interpret the agreement.

_______________  If the language of both parties is the same, that languagecanbethelanguageforinterpretationoftheagreement.Ifthe languages of the parties are different, one language should be chosen for the controlling version of the agreement with a translation of the agreement into the other language as a second version of the agreement. Both language versions of the agreement must be signed by both parties.

_______________ As with language, one form of currency needs to be the controlling basis for pricing under the agreement. Because ofthefluctuationofthevalueofcurrenciesagainsteachother,itisalso wise to include a provision allowing either party to cancel the transaction if currency fluctuations cause a substantial reduction in the profits either party expects to receive from the deal.

_______________  Payment under most international transactions will be made by Letter of Credit. These are very specific bank documents that guarantee payment from the buyer’s bank account to the seller’s bank account upon the occurrence of certain events related to the transaction (ie. goods placed on board the ship, goods clear customs).

_______________  One of the most important issues in the internationalpurchaseofgoodsistheassurancethatthegoodsdeliveredare in substantial conformance with the goods ordered. Most experienced

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international traders will use an independent agent for a pre-shipment inspection of the goods before they leave the factory and/or the dock for delivery to the customer. Issues covered in these pre-shipment inspections will include: product quantities, internal product packaging, product quality, compliance with labeling requirements, confirmation that delivery addresses are correct.

_______________  Many international shipments of larger products will be by container ship over one or more of the world’s oceans. Because of the possibility for delay due to weather, international disputes or other events outside the control of the parties, it is important to have a clear understanding of how delays in delivery will be handled.

_______________  Some of the vital elements of an international contract for the purchase of goods relate to who pays the cost to ship the goods, pays for replacement insurance and bears the risk of loss from the point of shipment. Certain terms and abbreviations have been developed (see discussion of Incoterms below) for designation of these issues in a contract and anyone engaged in international business must be aware of how these issues are treated for their particular transactions.

_______________ Any international shipment of goods should be covered by the full replacement value of the products being purchased. Depending upon the economics of the deal, additional insurance coverage can be obtained for lost profits if the shipment is lost or destroyed.

_______________  International shipments of goods will be required to clear customs in the country of delivery. Different goods and products will have different customs requirements and the procedure for compliance with these requirements should be stated in the agreement. Use of an experienced Customs Broker is strongly recommended.

_______________  Every international contract should contain a provision addressing how the buyer of the goods will provide the seller with notice of acceptance or rejection of the shipment. This provision should include a requirement that the shipment is opened and inspected for breakage or non-conforming goods within a short time after the goods clear customs.

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_______________  Every business contract needs to contain a provision stating the time for the payment for the goods. Payment can be divided so that part of the payment is made when the order is placed and the balance upon delivery or some other combination of terms. Payment may be (i) in advance; (ii) upon delivery or (iii) upon some date after delivery.

_______________  Every agreement for international business should have a provision stating what laws will apply to the transaction andanydisputethatmayariseasaresultofthetransaction.Suchterms would also include a provision for what dispute resolution procedure will be used (ie. mediation, arbitration or action in the courts).

MORE ON INTERNATIONAL CONTRACT

All types of agreements, including international contracts, include provisions for contract enforcement. A contract’s validity is ensured through its enforcement. Contracts that are not legally enforceable cannot be enforced in court. As a result, the key component of international contracts is contract enforcement. The parties should confirm whether the contract is enforceable.

Образец международного договора купли-продажи с двусторонним переводом и спецификацией (английский язык)

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