En el marco de la contratación internacional, existen un numeroso conjunto de cláusulas que conforman el contenido del contrato. Entre otras, cabe señalar las siguientes:
The International Trading terms are regulated in the Incoterms 2020 that will be explained in the following paragraphs. There are 11 Incoterms which are:
EXW (Ex Works):The seller/exporter makes the goods available to the buyer in their own warehouse and is only responsible for packing the goods. The buyer/importer therefore bears all of the costs and responsibilities from the moment the goods cross the warehouse prior to loading. Insurance is not mandatory but should it be required it would be taken out by the buyer as they bear the risk.
FAS (Free Alongside Ship):The seller delivers the goods to the port of origin loading dock and bears the costs up to delivery as well as being responsible for export customs procedures. The buyer is responsible for loading on board, stowage, freight and other costs up to delivery at destination, including import clearance and insurance, if taken out as it is not mandatory. The buyer also bears the risk once the goods are in the loading dock prior to being loaded onto the ship.
FOB (Free On Board):The seller bears the costs until the goods are loaded onto the ship, at which point the risks are transferred as well as responsibility for export clearance and costs at origin. The seller also arranges the transport although the buyer bears the cost. The buyer is responsible for the cost of freight, unloading, import clearance and delivery at destination as well as insurance should they take it out. The transfer of risk occurs when the goods are on board.
CFR (Cost and Freight):The seller is responsible for all costs until the goods arrive at the destination port, including export clearance, costs at origin, freight and usually unloading costs. The buyer is responsible for import procedures and transport to destination. They also bear the risks from the moment the goods are on board, hence, although it is not mandatory the buyer usually takes out insurance.
CIF (Cost, Insurance and Freight):As with CFR the seller bears all the costs up to arrival at the destination port, including export clearance, costs at origin, freight and usually unloading. However, unlike CFR, the seller must also arrange insurance even though the risks transfer to the buyer once the goods are loaded on board.The buyer bears the import and transport to destination costs.
CPT (Carriage Paid To):The seller bears the costs until the goods are delivered to an agreed place, i.e., they are responsible for all of the costs at origin, export clearance, the main transport and usually, costs at destination. The buyer is responsible for import procedures and insurance if taken out as it is not mandatory. The risk is transferred to the buyer once the goods are loaded onto the first means of transport arranged by the seller.
CIP (Carriage and Insurance Paid To):The seller bears the costs up to delivery at an agreed place at destination, the costs at origin, export clearance, freight and also insurance which is mandatory. The importer is responsible for import clearance and delivery at destination and takes on the risk when the goods are loaded onto the first means of transport.
DPU (Delivered at place Unloaded):The seller bears the costs and risks arising at origin, packing, loading, export clearance, freight, unloading at destination and delivery at the agreed point. The buyer is responsible for import clearance procedures.
DAP (Delivered At Place):The seller bears all the costs and risks of the operation apart from import clearance and unloading at destination, i.e., all costs at origin, freight and inland transport. The buyer is only responsible for import clearance and unloading.
DDP (Delivered Duty Paid):The seller bears all costs and risks from packing and checking in their warehouses to delivery at final destination, including export and import clearance, freight and insurance, if taken out. The buyer only has to receive the goods and usually unloads them, although this can also be done by the seller. Next, we will talk about the most common clauses which are used in International Trading. Despite the fact that there are many of them, we will see the most used, that are these 10:
Description of goods:
This clause is one of the central clauses in a sale contract. As a general rule, the buyer will prefer more precise and detailed descriptions than the seller. If the goods are not described precisely enough, the buyer may have no recourse should the seller deliver goods which technically meet the contract description but are unsatisfactory for the buyer´s commercial purposes. On the other hand, exporters would like to define the goods precisely when they are sure of delivering exactly those goods. In other commercial situations, however, it may be practical to foresee and permit slight deviations from the contract description; for example, in statements of colors or dimensions, are not necessary to precisely identify the goods, and they should not be included in the product´s description.
The parties shall indicate clearly the contract currency and the price amount in both figures and words. Should the parties fail to agree on a price in the contract, a provision explaining the method for determining the price should be included in the contract.
Incoterms rules allocate the following between seller and buyer:
- International transport and administrative costs.
- The point of transfer and risk of the goods.
- Responsability for customs and payment of import duties
- Responsability for obtaining insurance coverage.
When using Incoterms, it is necessary to describe precisely the place and within that place the exact point of delivery. Additional specifications may also be necessary to specify such as the amount of the extent of insurance coverage and any necessary limitations on suitable transport. Further information about the use of Incoterms can be founded in The Practical Guide to Incoterms.
Time of delivery:
In the contract, the parties should indicate a specific date for delivery or a period.
The contract should permit the use of all international payment modes, including at least: payment in advance, open account, documentary collection and documentary credit (also known as letter of credit).
Exporters are well advise to be meticulous in their management of export documentation, especially when the payment method is letter of credit. The parties should include a clause with a list of documents most commonly required for seller in international sales contracts.
Inspection of goods by the buyer:
The parties should indicate whether they agree to inspection "before shipment" (also known as pre-shipment inspection or PSI); the parties may indicate the place of inspection as well as other details such as inspection company. The inspection require the seller to notify the buyer of the availability of the goods for inspection.
Retention of title:
The retention of title (RoT): clause is a common one in international trade. It provides that the seller retains ownership of the goods until the full purchase price is paid and also that the seller may reclaim the goods if the price is not paid. There are several variations of RoT clause, but to major types can be distinguished: the simple RoT clause, under which the seller retains title until price is paid, and the extended clause, under which the seller seeks to extend its title to include: the proceeds from any sale of goods and any other indebtedness owed to the seller by buyer.
It is common for international trade contracts to be made subject to force majeure or "hardship" clauses that excuse the parties from performance when their failure is due to impediments beyond their control or which were reasonably unforeseeable such as the outbreak of a war, earthquake or hurricane.
The distribution of expenses:
the usual thing is that the seller bears the strictly precise expenses to put the merchandise in delivery conditions and that the buyer bears the other expenses. There are four cases, the “C” terms, in which the seller assumes the payment of transport costs (and insurance, if applicable) to the destination, despite the fact that the risk is transferred at the source; This is due to traditional uses of maritime transport that allow the sale of goods while the ship is sailing, since the cargo changes ownership with the transfer of the bill of lading.
The confidentiality clause:
This clause should preclude both sides from divulging any and all information that is shared during the course of the transaction.
The exclusivity clause:
Through the exclusivity clause, the debtor undertakes not to enter into contractual arrangements with a third party with respect to the benefits promised to the clause creditor.
The solve et repete clause or ‘pay first and then claim’’ clause:
As a contractual clause, solve et repete is considered legitimate, since the parties are free to agree that the debtor in a contractual relationship should first pay up and then take out a case.
Resolution of Disputes:
The parties should have the alternative between arbitration and litigation. In the event the parties opt for arbitration should specify the place of arbitration and the language. If the parties opt for litigation as the required mode of dispute resolution, the parties should designate the national or municipal courts in which lawsuits are be filed.
in contracts, its knowledgest the referee who is related to any procedure. Is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.
Law clause applicable:
This is, also, one of the most important clauses that has to be included in a contract for differents reasons, among which can be named the election of the law that can be elected in relation of the parties interests and which law need to be respect.