ComplaintsSettlement.docx

1、Complaints SettlementComplaints and Settlements Unit 24 Breach of ContractUnit 39 Complaints and ClaimsUnit 40 Apology and SettlementUnit 41 arbitrationUnit 42 Trade RisksTips:Breach of contract: any contracting party fails to carry out its obligation (violates the contract).Kinds of breach (legal c

2、onsequence, legal responsibility)Breach of conditions - a breach of main conditions of the contract (e.g. time limit of delivery, quality and quantity of goods , failure of payment, etc.)The injured party has the right to revoke the contract and claim compensation.Breach of warranty - violations of

3、the secondary terms of contract (e.g. )The injured party cannot revoke the contract, but can claim compensation. If the breach is not serious, the suffering party may lodge a claim for compensation.Kinds of complainsGenuine complaint: complains arise from real situation., e.g. the wrong goods have b

4、een sent; the quality may not be satisfactory; the goods have been damaged; the delivery has been delayed; the price charged may be excessive or not as agreed. Fault complaint: complains were made deliberately as an excuse to escape from his obligation. When making complaints/claims, pay attention t

5、o the following particulars:Full details Surveyors reportWithin time limitNo goods should be used or resold to some third partyAt least 10% of the original packages should remain unopened for the sellers re-inspectionWhen receiving complains/claims, stick to following principles:General rule:Adhere

6、to the principle of on the first ground, to our advantage and with restraint.Specific rule:Be self-possessed To justify the complaint first, replying on the stipulations in the contract: responsibility for the problem, reliability of the complaining party, the nature of the business, company policy,

7、 national regulation/law, etc.Be quick (give immediate attention to the matter)Be patient Be polite (with courtesy and in good manner)Be smart (other compensations besides apology or discount)Be sincere (turn to seniors)Be generous (compensate more than requested)To settle amicably and to the satisf

8、action of all parties concerned without referring to arbitration.Three possible solutions to the settlement of a complaint:Requested adjustment is granted.A compromise adjustment is proposed.Any adjustment is denied. Force majeure 不可抗力我国法律认为，不可抗力是指不能预见、不能避免并不能克服的客观情况。按联合国国际货物销售合同公约解释，是指非当事人所能控制，而且没有

9、理由预期其在订立合同时所能考虑到或能避免或克服它或它的后果而使其不能履行合同义务的障碍。据此，不可抗力是指在合同成立以后所发生的，不是由于当事人一方的故意或过失所造成的，对其发生以及造成的后果是当事人不能预见、不能控制、不能避免并不能克服的。 引起不可抗力的原因有两种：一是自然原因，如洪水flood、暴风hurricane、地震earthquake、干旱drought、暴风雪snowstorm、冰雹Hail stones等人类无法控制的大自然力量所引起的灾害事故；二是社会原因，如战争、罢工、政府禁止令等引起的。If the loss is huge, he may take legal act

10、ion.Arbitration:When no amicable settlement can be made between the buyer and the seller, the disputes may be referred to the third party arbitration tribunal for settlement.Arbitration ArbitratorArbitral award (has the force of law)Arbitration clause in the contract: where to hold, the application

11、of substantive law, the appointment of arbitrators, the writing of an arbitration clause. Civilized way of settling disputes and differences;Convenience;Expert knowledge of the arbitrators;Speed of proceedingsAdjudication The dispute in question turns on a point of law.Language examples:Claims1 What

12、 is the damage?2 Where and how did the damage occur? 3 Whether there are prior arrangement for the kind of damage occurred?4 Whether there are acceptable documents demonstrating that?5 What is the claim?Quality of goods The first shipment of our Order No. 123 for cheese reached us yesterday. But the

13、 cheese was not in conformity with the contract stipulation. According to the contract, the expiry date of the cheese is on March 1 next year. But unfortunately, upon examination of the goods, we found that the expiry date is November 1, this year. This is the survey report by our Commodity Inspecti

14、on Bureau. It certifies that the cheese was made six months ago.You have to be responsibly for it. Quantity of goodsWe ordered a total amount of 500 tons of your Sunflower brand salt. But when we inspected the goods after its arrival at the destination we found there was a shortage of 100 kilos. Thi

15、s is the survey report by our Commodity Inspection Bureau. It certifies that the shortage of 100 kilos. You have to be responsibly for it. Delay payment Im phoning about our invoice No. 12. We made out this invoice three months ago. But up to now we havent received any payment for it. We must ask yo

16、u to arrange to make payment no later than May 10th. Otherwise well put the matter into the hands of our solicitor.Faulty OriginWhen the goods arrived, we found that the place of origin is Qingdao rather than Dalian. Such a change will bring a lot of troubles to our sales. We suggest a 3% discount o

17、f the original price. Otherwise, well have to reject the goods. Claims+ Grant requested adjustment /Propose a compromise adjustmentI hope we will settle the matter as amicably as possible because (this is the first business deal between us). We dont want to disappoint our partners. Will you please I

18、 apologize deeply for this mistake. Well pay for the fees for and send your company an official document for your explanation to I understand what you mean. Please be frank with me, and tell me what I can do for you. I must remind you that according to the contract, (the maximum allowance for natura

19、l loss is 0.2%). Considering that we have just started business, well give you 5% discount for your next order. Claims + Adjustment is denied160 laser printers are damaged so seriously that they are unsuitable in the market. Heres the video of those damaged ones. In addition, the inspection certific

20、ate issued by our inspection bureau shows that the goods are not properly packed. This seems to be a very clear case. You should consider our claim seriously for protection of your own reputation.As the inspection certificate and the bill of lading showed, all the goods had gone through rigid inspec

21、tion before packing and the carrier received them in apparently good condition. Thus, they must be damaged in the course of transit. Therefore, you should refer to the carrier or the insurance company.Im phoning about our order for the developing agent and the photosensitive paper placed two months

22、ago. We havent received the ordered goods yet. We plan to lodge a claim for all the losses incurred as a consequence of your failure to ship our order in time. Im very sorry for all the losses you suffered, but it is due to force majeure. Our manufacturer was flooded last month. I can show you the w

23、eather report of last month and other supporting evidence. (seller) I apologize deeply for this matter. Perhaps we could submit the case to arbitration. (buyer) Now that you cannot make any adjustment about it, the case under dispute might have to be submitted to arbitration. ArbitrationKey Elements

24、 in Arbitration Clause1 Where will the arbitration be held?2 What procedural rules will be applied?3 What substantive law will be applied?4 Which will be the organization to submit the arbitration to?5 How will the arbitrators be appointed?6 Which party will pay the arbitration fee?7 How will the ar

25、bitral award be made?8 What will be the effect of the arbitral award?Typical dialogueExporter FranceImporter ChinaIts much better to resolve any dispute that might arise through friendly negotiation. 能通过友好协商的方式解决争端是最好的。我同意你的观点。仲裁只是最后的手段。I agree with you. Arbitration is only the last resort. 但是关注合同中有

26、关仲裁的条款将有助于未雨绸缪。But attaching importance to the arbitration clause of a contract will help to to get prepared against a rainy day.You are right. We had better think more of the possible problems which might happen.没错。我们最好是多想想可能发生的问题。1 Where do you think the arbitration will be held, if there might be

27、 one?如果需要仲裁的话，仲裁将在何处进行。根据中法贸易的惯例，仲裁在被告所在国进行。According to the customary practice in Sino-France trade, arbitration will be held in the country of the defendant.也就是说，如果我方提出仲裁申请，仲裁的地点在中国。反之亦然。That is to say, if we submit the case, the place for arbitration is in China, and vice versa. 2 What procedural

28、 rules will be reply to the arbitration, then?那么仲裁将遵循何种程序规则呢？如果在中国举行仲裁，将适用CIETAC的程序规则。If it is in China, the CIETAC procedural rules will apply. 如果在法国，据我所知，将适用FICAA程序规则。If it is in France, as I know, FICAA will apply. 两个机构都有足够的专业实力进行此类仲裁。Both these two organizations are professionally competent.3 Wh

29、at about the substantive law?那么适用哪国的实体法呢？通常情况下，合同双方可以对此进行约定，并在合同中说明。Generally speaking, the parties to a sales contract are free to choose the applicable law and specify it in their contract. 由于这个项目涉及到对中国的投资，只能适用中国的实体法。Since this contract involving foreign investment in China, the Chinese substantiv

30、e law will apply. 4 Should we submit the arbitration, if it takes place in France, to a standing French arbitration commission?如果仲裁发生在法国，我们可不可以将仲裁要求提交给一个常设的仲裁机构呢？恐怕不行。我方坚持把仲裁提交给临时仲裁庭。I am afraid not. We insist on submitting the case to a temporary arbitration tribunal. 原因是临时仲裁庭将由双方各自指定的仲裁员构成，这有利于公正地

31、解决问题。The reason is that such a tribunal with arbitrators from both sides will be fair and able to handle any dispute without bias or partiality. 5 How about the appointment of arbitrators, if it takes place in China? 如果仲裁在中国发生，仲裁员将如何指定？根据中国的仲裁规则，可以指定1或3名仲裁员。According to the Chinese Rules for Arbitra

32、tion, one or three arbitrators can be appointed.我们可以通过磋商共同指定一名仲裁员。We may hold consultation to appoint a sole arbitrator.也可以各从CIETAC仲裁委员会的仲裁员中指定一名仲裁员，然后再由仲裁委员会主席指定一名首席仲裁员。Otherwise, we each party may nominate one arbitrator for the CIETAC Panel of Arbitrators. Then the third one is to be appointed by the Chairman of CIE