Foreign trade contract and its types. Types and conditions of foreign trade contracts A foreign trade contract is concluded

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What is a foreign trade agreement?

A foreign trade contract is an agreement concluded between partners from different countries. This document confirms a specific agreement reached between two or more parties.

“Template” contracts raise suspicions among customs authorities.

The subjects of a foreign economic agreement may be different. Its design and type depend on the subject of the document. The foreign trade contact also indicates the currency in which the payment will be made.

Types of foreign trade contracts

As mentioned above, the type of foreign trade contract depends on the subject discussed in the document:

purchase and sale;
contract (for example, construction);
provision of services;
international transportation of goods;
assignment;
rent or .

The agreement involves the provision intellectual property, goods and services in exchange for monetary or other remuneration.

There is a division of contract clauses. Items may be mandatory or optional. Mandatory items specified in the contract include the cost of services or goods, delivery conditions, information about both parties to the contract, and possible fines. Additional items include guarantees, insurance, actions in case of force majeure and other items necessary for the successful conduct of a foreign trade operation.

Structure of a foreign trade contract

The structure of the document may vary, but the standard form of a foreign trade contract is as follows:

Date, place of conclusion of the contract, registration number;
Preamble, including the name of the parties to the agreement, the names of the states, the status of the partners (for example, buyer and seller);
Subject of the agreement, including a description of the product and its name. If we are talking about a product that has complex technical characteristics, then this paragraph indicates only its quantity and short description, the terms of the foreign trade contract are supplemented by a specific section “Technical Conditions”, which describes the technical requirements for the subject of the transaction;
Product cost, its quantity, the currency in which it is planned to make payments;
Delivery conditions indicating the states from which the shipment will be made and where the cargo will be delivered. The person responsible for transporting the goods is indicated.
In the event that transportation is carried out on the basis of INCOTERMS, it is required to indicate what year of manufacture the INCOTERMS used is. Delivery times and payment terms are indicated;
Product packaging type. You must specify both the outer packaging (for example, a container) and the inner packaging. The labeling of the goods is indicated, including legal information about the buyer and seller, contract number, special markings (for example, an indication of fragile or dangerous cargo);
Delivery time. We are talking about calendar dates by which the cargo must be delivered to the geographical points specified in the contract. Russian legislation indicates that the delivery time refers to the mandatory or essential conditions of the foreign trade contract of the Russian Federation. The delivery time is indicated either by a calendar date or by the expiration of a certain period of time. The possibility of early delivery of goods is also stipulated in the contract.
Terms of payment for goods. It can be cash and cashless payments. When making payments for international trade transactions, checks, bills of exchange, and letters of credit are usually used. Read what an irrevocable letter of credit is. In the event that advance payment is required, this point is also reflected in financial conditions contract;
Insurance Information. This includes data on the subject of insurance, the person for whom the insurance is issued, the list of risks;
It is worth mentioning the warranty service. The actions of the buyer and seller are indicated if the product turns out to be defective. The terms and conditions of replacement, the conditions under which warranty service will be provided;
Responsibility of the seller or buyer. Here the actions of one or another party are recorded if the delivery of goods was performed poorly, there was a violation of deadlines, the cargo did not arrive fully assembled, there was a delay in payment for services, etc. It is indicated who is responsible for possible losses and to what extent;
The procedure for action in this case is indicated if there are any disputes and conflict situations. In particular, possible ways to resolve the conflict are mentioned (court, negotiations, and so on);
Occurrence of force majeure. This includes a list of situations that both parties recognize as “force majeure circumstances” that push back the deadlines for fulfilling the obligations of one or another party for the period of the force majeure and the elimination of its consequences;
Additional Information. This line can include the procedure for possible amendments to the contract, confidentiality conditions, the possibility of third parties participating in the contract, the number of copies of the contract, and so on;
Names of partners, legal addresses, Bank details;
Signatures of both partners, stamp and decryption of the signature. In this case, the positions on the basis of which the person is engaged in signing the contract must be indicated. You can supply a facsimile if this possibility is specified in the contract.

This is the structure of the most common type of foreign trade contracts - purchase and sale. Other types of contracts are drawn up in approximately the same way. You can see a sample of foreign trade contracts.

If the parties do not reach an agreement on any of the clauses of the contract, the contract will not be considered concluded.

Design rules

A contract is concluded for any business interaction with a foreign counterparty. Its execution is extremely important, because if there are omissions, solving the problems that arise will be doubly difficult, since your partner is in another country. If you want to check your foreign partner, then this can be done remotely. We already wrote where to find it in the previous article.

To prevent troubles, the following points should be taken into account when drawing up a foreign trade contract:

Priority should be given to the terms of the contract. You need to spell them out well. In case of disagreement with a partner, the basis for resolving the conflict will be precisely the conditions specified in the contract;
It is important to choose which country’s legislation will apply when implementing the contract and indicate this in the contract. Legislation affects such parties to the contract as the rights and obligations of partners, implementation of the contract, invalidation of the contract;
By law, you need to have a written contract. That is, it must be personally signed by both parties. Otherwise, it may be declared invalid by the tax authorities;
note to ensure that the contract describes the labeling, packaging of the cargo, its exact volume, and weight. Using this data, you can determine whether the seller has fulfilled all the terms of the transaction and, if necessary, hold him accountable;
The contract requires a set of papers, which the seller is obliged to transfer to the buyer, documents confirming the shipment of the goods;
Force majeure clause involves situations in which both parties cease to be responsible. This paragraph can list all possible force majeure circumstances, but it is better to leave it open in case of unforeseen situations;
In the clause on the responsibility of the parties, you can list the fines and sanctions that occur if one of the partners fails to comply with the specified conditions;
Check that the contract contains all required clauses. Foreign trade contracts usually attract close attention from tax authorities. Problems can arise from seemingly small things. In particular, if the contract is not drawn up correctly, the seller may be deprived of the opportunity to take advantage of the zero interest rate. The buyer may have problems with customs authorities.

sole founder

Before concluding a foreign trade agreement, find out legal status, financial situation and business reputation counterparty. Make sure that the lawyers drafting the contract have a good command of the language of your partner's country. Gain a clear understanding of the meaning of terms used in international business.

Nikolay Chudakov,

supervisor, Chief Editor, legal reference system "System Lawyer"

In this article you will read:

Important nuances of concluding a foreign trade contract
Errors in the contract foreign trade supplies
Sample foreign trade agreement

Error 1. Concluded a foreign trade contract without checking the foreign counterparty

The legal status of a foreign person is confirmed by an extract from the trade register of the country of origin or another document issued in accordance with the legislation of the country of its location (clause 3 of the letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 25, 1996 No. 10).

Check your partners urgently!

Do you know that When checking, tax authorities can cling to any suspicious fact about the counterparty? Therefore, it is very important to check those with whom you work. Today, you can receive free information about your partner’s past inspections, and most importantly, receive a list of identified violations!

Consequences. If it turns out that the foreign counterparty is not registered as legal entity or the contract was signed on his behalf by an employee who does not have the authority to do so, then one should expect problems with the execution of the contract. There is a high risk that the delivery of goods will not take place or will not be delivered on time. An unreliable supplier may deliver goods incompletely or with defects. But you will not be able to make a claim in connection with this (and return the prepayment). There will be no way to find foreign partner to serve him, for example, with a claim or lawsuit and summons to appear in the arbitration court.

How to do it right. You can assess the reliability of a foreign counterparty (in particular, check whether the company is really founded and registered in its country) by contacting, for example, chambers of commerce and industry or credit bureaus of the countries of the intended partners.

Most information about foreign companies, including financial ones, is not a commercial secret, so information about them can also be obtained from open sources - address (Jaeger Waldmann International Telex Teletex Directory, Teleurope, Marconis International Register, "Address-Europe") or proprietary reference books (Moodys Industrial Manual, Stock Exchange Official Yearbook), annual reports, prospectuses.

Error 2. Did not check the text of the contract in a foreign language

As a rule, a foreign trade contract is drawn up in two copies and in two languages. Therefore, there is a risk that discrepancies may arise between these texts due to incorrect translation or unclear understanding of the meaning of terms used in foreign trade.

Consequences. If there are discrepancies, the court will decide which text of the contract - in Russian or a foreign language - to apply. And it may turn out that it will be a text in a foreign language. Let me give you an example. A US company rented an office from a Russian landlord. The text of the agreement in Russian contained the wording “All disputes arising between the parties in relation to or in connection with this Agreement are subject to final resolution in the Arbitration Court of Moscow, Russia.”

However, the tenant filed a claim not with the Moscow Arbitration Court (which is part of the system of state courts), but with the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (ICAC) 1 . As a result, the ICAC decided that it was competent to consider this dispute, since “in the lease agreement for English language, which, according to clause 19.2, has priority over the Russian text, in the arbitration clause we're talking about not about the Moscow Arbitration Court, but about arbitration in Moscow according to the rules of the ICAC, which is what is taking place in the present proceedings” (decision of the ICAC at the Chamber of Commerce and Industry of the Russian Federation dated December 9, 2004 No. 74 / 2004). For the negative consequences of an incorrect name of the court in a contract, see section “Mistake 4.”

How right. Make sure that the lawyers who review the foreign trade supply agreement are fluent in foreign language, on which the contract was drawn up. In addition, it is advisable to include in the contract a condition that the text in Russian has priority (clause 7.5 in the sample foreign trade contract).

1 Arbitration courts (including the ICAC) are not part of the judicial system of the Russian Federation; they are alternative way protection of rights. The basic principle of arbitration proceedings is the voluntary compliance by the parties with the arbitration decision.

Mistake 3. Choosing an unfavorable applicable law or not agreeing on it

Applicable law is the law that is subject to application to the rights and obligations of the parties under the contract (clause 1 of Article 1210 of the Civil Code of the Russian Federation, hereinafter referred to as the Civil Code of the Russian Federation). The parties can choose it themselves. This may be the law of one of the parties to the contract or the law of a third state in which the supplier and buyer are not registered.

Consequences. If the dispute is considered under national law foreign company, then the Russian side finds itself at a disadvantage. After all, she does not know all the features of the law of another country as well as Russian law. As a result, when concluding a contract, and even more so when a dispute arises, the services of more qualified lawyers familiar with the law of the partner country will be required, and often the services of lawyers of the country whose national law is chosen as the governing law. As a result, signing the contract will cost a significantly larger amount.

If the agreement for the conclusion of a foreign trade contract does not indicate the applicable law at all, then the arbitration (regardless of which country it is located) will determine it in accordance with the conflict of laws rules that it considers applicable (Vienna Convention on International Contracts of 1980). purchase and sale of goods, Article 28 of the Law of the Russian Federation dated July 7, 1993 No. 5338–1 “On International Commercial Arbitration”). Moreover, these can be norms of both international and national law. Often, conflict of laws rules of different countries indicate that the law of the seller’s country is applicable for an international sales contract. This provision is also contained in Art. 1211 of the Civil Code of the Russian Federation. Thus, if the contract for the import of goods into Russia does not stipulate the applicable law, then general rule it will be the law of the seller's country.

How to do it right. When developing and concluding a foreign trade contract, consider two circumstances. First, ask your lawyers to make such a contract much more detailed than regular contracts with Russian companies. Try to resolve all possible controversial situations in it and fix the rules for their resolution. After all, if a controversial situation arises that is not regulated by a foreign trade contract, then the law established in accordance with the conflict of laws rule will be applied, which the arbitrators consider applicable in this case. And much will depend on the laws of which country this dispute will be considered.

Head of sales department: how to become an excellent manager

Secondly, even in the most detailed contract, you need to indicate the applicable law - in case some situation still remains unresolved (Figure, clause 5.3 of the contract). Try to invite the counterparty to choose Russian law. If he does not agree to this, then even before signing the contract, contact specialists who have experience in working with the law of the seller’s country so that they analyze the text of the contract for possible risks associated with the peculiarities of the legislation of that country.

Additional Information. Even if the parties have agreed that Russian law is applicable, the court will only apply it to those issues that are not regulated by the Vienna Convention on Contracts for the International Sale of Goods.

Mistake 4. Agreeing on an unfavorable arbitration clause

The contract must define not only the law that will be applied in the event of a dispute, but also the court that will hear the dispute (arbitration clause). The parties may appeal to the state court of the country of the seller or the country of the buyer, or to one of the international arbitration courts. Thus, you must first choose between state and arbitration courts, and then identify a specific court (either a specific arbitration court, or the country whose state court will hear the dispute).

Consequences. An irrational choice of court can lead to unnecessary costs. If the dispute is to be heard in a foreign court, then, firstly, you will need a lawyer who has the right to speak in such a court and is familiar with its procedure.

Secondly, conducting a process in many foreign countries requires more time and costs than considering a case in Russian state courts.

Finally, consideration of a case in an arbitration court has its own characteristics. The process can take several months, but the decision is final and is very rarely challenged in state courts (such a review can only be applied for on procedural grounds, but not if the losing party does not agree with the decision on the merits).

How right. Firstly, you need to correctly name the court you have chosen in the contract - it is important not to make mistakes in the terms. The fact is that in Russia arbitration courts are called state courts that consider economic disputes in the business sphere (for example, the Moscow Arbitration Court). In other states and in international law, the term “arbitration court” usually means a non-state arbitration court (see section “Error 1”).

Secondly, if you have chosen one of the international arbitration courts, ask the lawyers to check its regulations and include in the text of the contract an arbitration clause exactly in the wording given in the regulations (Figure, clause 5.2 of the contract). This will eliminate the possibility that the case will end up being considered by a court that is not desirable for you.

Error 5. The basic terms of delivery were mixed up

Often the parties to a contract are not familiar with trade practices in different countries. To make it easier for them to develop contracts, the International Chamber of Commerce has compiled a list of the most typical options for their conditions - Incoterms supply bases. In the 2010 edition, there are 11 such options. Four of them are applicable only for sea and inland waterway transport, and the remaining seven are for all types of transport.

Consequences. Incoterms are applied by agreement of the parties. But if in the contract you refer to the corresponding Incoterms basis, then in the event of a dispute the court will apply it and will not take into account your assurances of ignorance of what this basis means.

How right. Carefully read (preferably with a lawyer) the description of all Incoterms terms and explanations to them. Calculate in advance which conditions will be more profitable for you as a buyer. If you have chosen, for example, the EX Works basis (ex-factory), directly indicate it in the contract, and also write the address of the place from where the buyer is obliged to pick up the goods (figure, clause 1.4).

If the parties change or supplement individual provisions of the selected terms of delivery (Incoterms), then all changed (added) conditions must be set out in detail in the contract. For example, you can specify what costs the parties bear in accordance with the selected delivery basis. Additionally, stipulate who bears the costs of loading and unloading, packaging and labeling of the goods. Clarify at what point ownership rights and the risk of accidental loss of the goods are transferred to the buyer. Then, not the Incoterms rule will be taken into account, but the special provision of the contract (ICAC decision of October 18, 1999 No. 385 / 1998).

Error 6. The edition of Incoterms was not specified

Consequences. If the contract does not indicate which edition of Incoterms you are using (or the name of the delivery basis and edition is incorrectly indicated), a controversial situation may arise.

Firstly, some of the bases were replaced. For example, in Incoterms 2000 there were bases DAF, DES, DEC, DDU. In Incoterms 2010 they are not present, instead DAT and DAP appeared. Therefore, if you write in the contract, for example, “Incoterms 2010 DAF,” then the court will have a question: what basis did the parties have in mind—whether the DAF basis from Incoterms 2000, or one of the new DAT or DAP bases in Incoterms 2010.

Secondly, when referring to a specific basis of Incoterms 2010, it is worth clarifying how it is formulated in this particular edition. The fact is that some delivery bases have changed slightly. In particular, one change was made to the FOB (free on board) basis. In the Incoterms 2000 edition, the seller's obligation to transfer the goods was considered fulfilled (and the risk of loss or damage to the goods passed to the buyer) at the moment of crossing the ship's rails, and in the 2010 edition - at the moment the goods were placed on board the ship.

How to do it right. In the contract, be sure to write down which edition of Incoterms you use. If you are referring to any of the old bases, indicate the edition in which it is used and the base itself, for example, “Incoterms 2000 DAF”. Then, in the event of a dispute, the 2000 edition will apply.

Additional Information. In the terms of the letter of credit, it is necessary to indicate what mandatory details the documents submitted to the bank must contain (name of the document; who issued or certified the document; main points in the contents of the document; language of the document - Russian, English, etc.); number of copies of originals and copies of such documents.

Error 7. The contract did not contain a complete list of documents

As a rule, sellers refuse to deliver without a guarantee, and the buyer refuses to pay for goods without actual delivery. Therefore, today most Russian companies enter into foreign trade contracts with a form of payment such as a letter of credit. It excludes non-compliance with the conditions of both the supplier and the buyer.

With a letter of credit form of payment, the bank, at the direction of the buyer, undertakes to transfer money to the seller when he presents certain documents to him. The list of such documents is agreed upon by the buyer and seller in advance. Thus, a letter of credit allows the buyer to avoid the risks associated with making an advance payment: the money will be transferred to the seller only after the actual delivery of the goods; if delivery does not take place, the money will be returned within a predetermined time frame; the delivered goods will be of appropriate quality, in the agreed volume and assortment.

Service agreement: sample, typical mistakes

Consequences. If the contract contains an incomplete or incorrect list of documents submitted to the bank, there is a risk that the seller will receive payment even if the goods have defects. For example, if the list of documents does not include a quality certificate, the bank will not be able to request such a certificate from the seller and will transfer payment to him based on the remaining documents. You, of course, will be able to make a claim to the seller if the product is defective, but it will take more time. In addition, you will have to demand that the seller return the funds already transferred to him.

How to do it right. A foreign trade contract must contain a complete list and precise description of the documents that the seller must submit to the bank in order to receive payment. In particular, these are documents confirming the actual delivery of goods, their quality, quantity and range. Then, if the seller is unable to confirm e.g. proper quality goods, he will not receive payment from the bank.

Information about the author and company

Nikolay Chudakov specializes in tax and civil law. Graduated from the Faculty of Law of the State University Higher School of Economics. Worked as editor-in-chief of such professional publications, How " Arbitration practice", "Tax disputes: theory and practice", "Documents and comments". Author of the books “Algorithms for winning a tax dispute: how to win against the inspectorate on procedural grounds” and “10 precedents on rental disputes.”

YSS "System Lawyer"- the first legal reference system of practical explanations from judges. Official website - www.1jur.ru

The legal basis for foreign economic transactions is various kinds of international treaties, agreements and conventions. This institutional framework for international cooperation is being developed by the participating countries themselves international trade, and international economic organizations.

International conventions in the field of economic cooperation operate in various fields and areas. There are general conventions related to the procedure for carrying out operations in foreign economic activity, and special conventions that affect only a narrow scope of this activity. Among general conventions, the most important currently is the UN Vienna Convention on Contracts for the International Sale of Goods - an international economic agreement adopted in 1980 and entered into force in 1988. The USSR joined the Vienna Convention in 1990.

The Convention regulates the procedure for concluding contracts for the purchase and sale of goods and their main conditions. The basic principle of regulating relations between the parties is the balance of interests of the parties to the agreement, achieved taking into account the customs and practices of their relations.

An agreement on the basic conditions of mutual obligations, reached during negotiations by the parties to a foreign trade transaction, is usually formalized in a written document - a contract, or an agreement. A sales contract is a document indicating that one party to the transaction (seller) undertakes to transfer the goods (or other subject of the agreement) specified in the contract into the ownership of the other party (buyer), who, in turn, undertakes to accept it and pay for it. him a set price.

A sales contract is considered concluded if it is duly signed by the parties whose legal addresses are indicated in it. Each contract must have an individual number, as well as information about the date and place of its conclusion. The absence of any of these elements may lead to the contract being declared invalid.

When drawing up a contract, it is often not taken into account that the relations of the parties are determined not only by the terms of the contract, but also by the rules of applicable law. The inconsistency of the contract with the mandatory requirements of the law led to the recognition of the contract as a whole or its corresponding condition as invalid (for example, in case of failure to comply with the form or changes and additions to it).

In other cases, it was sometimes impossible to use a contractual term. For example, the law in force in the UK and the USA does not allow the enforcement of a contractual provision for the payment of a fine through court or arbitration. In accordance with Russian, German and Bulgarian law, the inclusion of a penalty clause in a contract, as a general rule, does not deprive the right to demand compensation for losses in the part not covered by the fine; The law of Poland and the Czech Republic proceeds from the fact that a contractual fine is recognized as an exceptional penalty, i.e. Losses exceeding a fine cannot, as a general rule, be recovered.

It is advisable for both parties to know such features of the applicable law before concluding a transaction.

Depending on the nature of the supply and the specifics of the relationship between the counterparties, there are:

* a contract with a one-time supply of goods, after which the legal relations between the parties to the transaction are terminated;
* a contract with a periodic regular delivery of goods from the seller to the buyer within a certain period.

Both types of contract can be either short or long term execution, and the main difference lies in the specifics of the relationship between the transaction partners.

In international trade practice, there are a wide variety of contracts; their content depends on the operation that the counterparties are going to perform. But, despite all the variety of types of contracts, each of them is based on the provisions of the classic sales contract.

The terms of the sales contract include articles agreed upon by the parties and recorded in the document, reflecting the mutual rights and obligations of the counterparties. The parties to the contract independently choose certain wordings of the clauses of the contract, guided by the market situation, trade customs and the needs of the parties. In addition, some terms of the contract may be determined by international and other agreements or general conditions trades, to which reference is made in the contract in this case.

The terms of a contract are usually divided into essential and non-essential. Essential terms of the contract are those that, if one of the partners fails to comply with them, the other party may refuse to accept the goods, terminate the transaction and recover losses incurred.

If a non-essential condition is violated, the other party does not have the right to refuse to accept the goods and terminate the transaction, but can only demand fulfillment of the obligation and recovery of damages. The concept of essential and non-essential terms depends on the specific transaction.

Typically, essential conditions include:

* names of the parties to the transaction;
* subject of contract;
* quantity and quality;
* basic delivery conditions;
* price;
* conditions of payment;
* sanctions and complaints (fines, claims);
* legal addresses and signatures of the parties.

Non-essential (additional) conditions usually include:

* insurance conditions;
* shipping documents;
* guarantees;
* packaging and labeling;
* arbitration clause;
* other conditions.

Additional, or non-essential, conditions imply that if one of the parties violates non-essential conditions, the other party does not have the right to terminate the transaction, but may demand the fulfillment of contractual obligations and collect penalties if this is provided for by the terms of the contract. The contracting parties decide for themselves in each specific case which conditions will be essential and which non-essential.

In addition, the terms of the contract can be classified in terms of their universality (into individual and universal).

Individual ones, i.e. those that are specific to only one specific contract, include:

* names of the parties in the preamble;
* subject of contract;
* product quality;
* quantity of goods;
* price;
* delivery time;
* legal addresses and signatures of the parties. Universal conditions include:
* conditions for delivery of goods acceptance;
* basic delivery conditions;
* conditions of payment;
* packaging and labeling;
* guarantees;
* sanctions and complaints;
* force majeure circumstances;
* arbitration.

The structure and content of the contract are largely individual in nature and are determined both by the specifics of the subject of the transaction and the degree of proximity of the counterparties. In general, foreign trade contracts usually contain the following main articles, arranged in a certain sequence: preamble and definition of the parties, subject matter of the contract, price and total amount of the contract, quality of goods, delivery terms, terms of payment, packaging and labeling of goods, guarantees, penalties and damages. , insurance, force majeure, arbitration clause.

If the subject of the transaction is machinery and equipment, then the contracts may include other articles: technical specifications, obligations for maintenance, conditions for sending specialists, etc. In the case of selling the results of creative activity, in particular licenses, know-how, the contract includes articles on confidentiality, on the contractual territory and a number of other articles.

Special issues of the contract, primarily technical conditions, the nature of packaging and labeling, etc., can be included in the main text of the contract, and can also be formalized in appendices to the contract, which are its integral part.