Presentation on theme: "palestrante: frederico favacho"— Presentation transcript:
1palestrante: frederico favacho Oficina 2 – A CISG e outros modelos contratuais no mercado de granéis e commoditiespalestrante: frederico favacho
2What are Commodities?Commodities are a range of primary resources that can be traded in quantifiable amounts and have minimum quality standards.The establishment of such basic parameters means that the commodities can be traded in large volumes or numbers in international commodity exchanges, with traders being reasonably certain that the commodities being traded are not deficient.
3Commodities may be divided into a number of classifications: agricultural commodities (corn, coffee, cocoa, pork bellies, frozen orange juice, etc), energy commodities (oil, gas, etc) and metal commodities (gold, silver, iron ore, copper, etc).innominate commodities
4Commodity MarketThis market is comprised of a number of international commodity exchanges, notable ones being the Chicago Mercantile Exchange, the New York Mercantile Exchange and the London Metal Exchange.Officials of each exchange act to regulate transactions, amongst their responsibilities being the duty to ensure that the commodities traded meet minimum quality and quantity standards.
5Trade AssociationsTrade associations operating commodities market developed rules as to:the contracts to be usedhow transactions were to be effectedclearing and settlement systemsarbitration
6Standardization and Variation Contracts have evolved over many years to reflex the way in which international trade is customarily conductedAre regularly updated and amended to take account of legal decisions made by the Courts or changes in circumstances in the trade generally or in a particular sectorTo those who have been closely involved to the development of these contracts, the intentions behind the clauses and the interpretation to be given to the wording are well understood.Each contract is complete in itself. It sets out in details the precise terms on which any two parties can enter into an international transaction in relative safety of knowing that all the likely essential elements and points of potential controversy have been coveredParties are free to use the general basis of the contracts but to add, delete or amend any of the clauses at will
7Standard Terms and Inconterms Trade terms are key elements of international contracts of sale since they tell parties what to do with regards to the carriage of the goods from the seller to the buyer and the export and import clearanceThey also explain the division of costs and risks between the paritiesBut trade terms constitute only a part of the contract of saleInconterms are a set of standard trade terms, limited in their application to defining the rights and obligations of parties to contractsInconterms will not apply to Contract unless specifically incorporated.
8Standard Contract Forms Standard Contract Forms can be considered into three sections:Contract Specific TermsStandard Performance Terms andWhat if clauses
12Frustration Key elements None of the parties at fault Impossible to perform or radically different to what agreedExamplesPerformance of contract becomes illegal (e.g. sanctions)Destruction of the subject matterEffectContract comes to an end automaticallyNo positive act required
13FrustrationDifficult question: whether a contact is frustrated by delayoften a question of degreerequires abnormal delaymore likely if delay exceeds period of performanceNature of goods taken into account (eg concrete blocks vs soyabeans)Limited role where contract provides for catastrophic eventse.g. force majeure clausesFM clause may exclude the doctrine of frustrationdepends on how catastrophic the event isdepends on how clear the words used are
14Force Majeure Literally means “superior force” As a matter of English law, it is purely a creature of contract. There is no general or implied concept of force majeureClause operates only in the contractually specified circumstances e.g.war, strike or riotact of GodBreak down of plant or machineryUnavailability of raw materials
15Force Majeure Effect depends entirely on nature/wording of clause: may excuse performance while the FM event continues, butcan excuse performance after FM event has ended if problems are caused by FM eventmay only excuse performance from notice of FM event being given, butcan excuse performance from commencement of FM eventIf a party wishes to rely on a force majeure clause, it must follow the provisions strictly.It is vital that a party considers the risks and drafts/negotiates the FM clause with these in mind
16Specific example: FOSFA 4 “25. STRIKES, ETC/FORCE MAJEURE…(b) For delivery from any other origins –Should Sellers be prevented from loading the goods on board Buyers’ ship or should Buyers be prevented from taking delivery by reason of fire, strikes, lockouts, riots, civil commotion or any cause comprehended in the term Force Majeure, at the port/s of loading or elsewhere preventing transport of the goods to such port/s, the contract delivery period shall be extended by 60 days. If the Force Majeure event ends less than 21 days before the end of the extended delivery period, then a further 21 days shall be allowed after the termination of the Force Majeure event. Should loading or delivery not be possible within this extended delivery period, contract to be void.”
17Specific example: GAFTA "PREVENTION OF SHIPMENT“Event of Force Majeure" means (a) prohibition of export, namely an executive or legislative act done by or on behalf of the government of the country of origin or of the territory where the port or ports named herein is/are situate, restricting export, whether partially or otherwise, or (b) blockade, or (c) acts of terrorism, or (d) hostilities, or (e) strike, lockout or combination of workmen, or (f) riot or civil commotion, or (g) breakdown of machinery, or (h) fire, or (i) ice, or (j) Act of God, or (k) unforeseeable and unavoidable impediments to transportation or navigation, or (l) any other event comprehended in the term "force majeure".Should Sellers’ performance of this contract be prevented, whether partially or otherwise, by an Event of Force Majeure, the performance of this contract shall to the extent of such prevention be suspended for the duration of the Event of Force Majeure, provided that Sellers shall have served a notice on Buyers within 7 consecutive days of the occurrence or not later than 21 consecutive days before commencement of the shipment period, whichever is later, with the reasons therefore.
18Specific example: GAFTA (part 2) If the Event of Force Majeure continues for 21 consecutive days after the end of the shipment period, then Buyers have the option to cancel the unfulfilled part of the contract by serving a notice on Sellers not later than the first business day after expiry of the 21 day period.If this option to cancel is not exercised then the contract shall remain in force for an additional period of 14 consecutive days, after which, if the Event of Force Majeure has not ceased, any unfulfilled part of the contract shall be automatically cancelled.If the Event of Force Majeure ceases before the contract or any unfulfilled part thereof can be cancelled, Sellers shall notify Buyers without delay that the Event of Force Majeure has ceased. Sellers shall be entitled, from the cessation, to as much time as was left for shipment under the contract prior to the occurrence of the Event of Force Majeure. If the time that was left for shipment under the contract is 14 days or less, a period of 14 consecutive days shall be allowed.The burden of proof lies upon Sellers and the parties shall have no liability to each other for delay and/or non-fulfilment under this clause, provided that Sellers shall have provided to Buyers, if required, satisfactory evidence justifying the delay or non-fulfilment.”
19Breach of ContractCommitted when either party fails to perform the contract according to its “terms”What are the terms?Express (written/oral)Implied by lawImplied by statute
20Conditions, Warranties and Innominate Terms Key points:There are three types of contractual term: Conditions, Warranties and Innominate terms.Labelling is not conclusive – the starting point is to consider the parties’ intentions, but generally treated as such.Repudiatory breach justifying termination – must be a breach of a vital term (eg. a condition).
21ConditionsMajor or fundamental terms, breach of which will entitle innocent party, in addition to a right to sue for damages, to treat contract as repudiated.If any of the following apply:Statute or case law expressly provide a term is a Condition.Contract provides expressly that breach of the term entitles termination.The contractual wording indicates an intention of the parties that this is a term, the breach of which would entitle termination.Nature of contract/subject matter/surrounding circumstances.
22Examples of breaches of conditions: An event upon which an obligation or obligations of one or the other party, or of both parties depend.NOR – “Buyer shall give at least 15 days Notice of Readiness of vessels”. Bunge Corp v. Tradax Export SA  1 W.L.R. 711.HELD : To be a condition by the House of Lords.
23Other examples of conditions by case law: The giving of ETA’s on a reasonable and honest basis : “BALEARES” A letter of credit has to be provided on time. Vitol SA v. Conoil Shipment periodQuantity outside margin
24WarrantiesMinor, or less important terms, breach of which entitles innocent party to sue for damages.A party might warrant:That it has obtained all approvals necessary for entry into a contract.As to, say, the Ownership of the Vessel.
25Innominate TermsFirstly, a court must ask whether the term broken is a condition or warranty?Any term not so classified, will be an innominate term.The rights arising on the breach of an innominate term depend on the NATURE and CONSEQUENCES of that breach.Breach of an innominate term, therefore, may or may NOT entitle the innocent party to treat the contract as discharged.
26Bunge Corp v. Tradax Export SA Lord Wilberforce said that the Courts:“Should not be too ready to interpret contractual clauses as conditions.”BUT he went on to say that he did not doubt:“… that in suitable cases the courts should not be reluctant, if the intentions of the parties as shown by the contract so indicate, to hold that an obligation has the force of a condition.”
27Hong Kong Fir Shipping Co Ltd v. Kawasaki Kisen Kaisha Ltd, CA (1962) The leading case on the innominate term is this shipping case.Defendants chartered ship from claimants for 2 years.20 weeks were lost.Court of Appeal found that the breach did not deprive the defendant of substantially the whole benefit of the Contract and so it did NOT justify termination.
28Key Points What a term is labelled is not absolutely conclusive. Increasingly the Courts will look to the effect of a breach on the innocent party before designating it as a condition or warranty, and thus determining the legal consequences of the breach.When contracting regarding performance, if entering into a condition, be confident you can comply with it.
29Statutory implied terms Beware because these are all conditions.To avoid questions arising regarding satisfactory quality/fitness for purpose, the usual practice is to exclude these.An example exclusion is as follows:“There are no representations, duties (whether in negligence or otherwise), conditions, guarantees, warranties or terms, as to the description or satisfactory quality, fitness or suitability of the [product] for any purpose whatsoever, or otherwise relating to the quality of the oil, which extend beyond the description of the oil appearing in the agreement”.This clause, therefore, excludes any implied terms as to Quality.
30The Sale of Goods Act 1979S12 – Seller must own goods at time property will pass to buyerS13 – A condition that the goods conform to their descriptionS14(2)(A) – A condition that the goods are of satisfactory qualityS14(3) – A condition that the goods will be reasonably fit for purposeS30(1) – goods must not be of less than contractual quantity
31ArbitrationThe mechanisms by which parties in a commodity international contract resolve their disputes remain to a great extend those set out in the arbitration rules of the major commodity associations, based in LondonCommodity arbitration continue to be rather different to standard commercial arbitrations under, for example, the LCIA and ICC rules.Consequently there ar many potential pitfalls for the uninitiated
32Arbitration Commercial rather than Legal Tribunals Curtailed time limits for initiating arbitrationsMulti-tier arbitrations incorporating Appeal proceduresThe exclusion of legal practitioners from oral hearingsString arbitration / One biding awardDefault posting
33What are “time bars” and why are they important? When parties agree to incorporate the arbitral rules of a specific trade organisation (e.g. FOSFA), such rules can dictate the time period by which a party must make a claim against their contractual counterparty.Without the incorporation of specific arbitral rules, the standard time limits operating at law are as follows:Limitation Act: Contract/Tort claims – 6 years.From a shipping context, beware of Hague/Hague-Visby conventions – 1 year, and Collision – 2 years (need to be checked individually).Also, demurrage time limits, which are usually very short (but time stops running on presentation of a claim).
34What are “time bars” and why are they important? A time bar for commencing arbitration is usually stopped by one of the following:Commencing an arbitration; orAgreeing an extension of time (only if allowed).If neither of the above are done within the time bar, a party may lose their right to make a claim against their contractual counterparty (often referred to as a claim being “time barred”).Important:(1) for commercial certainty – no liability years later.(2) to beware of them to avoid losing the right to claim.
35Specific FOSFA time limits Type of ClaimTime limitAgainst seller for quality/condition of the cargoWithin 21 days from completion of dischargeAgainst buyer or seller for monies dueNot later than 60 days after the dispute has arisenOther CIF or similar claims (not quality/condition/monies due)Not later than 120 days after (i) expiry of contract period of shipment; or (ii) completion of dischargeOther FOB claims (not quality/condition/monies due)Not later than 120 days after expiry of contract period of shipmentOn any other terms (not quality/condition/monies due)Not later than 120 days after last day of contractual delivery period
36Specific GAFTA time bars Type of claimTime limitDisputes arising out of the “Rye Terms” clause10th consecutive day after the date of completion of final dischargeClaims arising out of certificates of analysis (where allowances are not fixed by the terms of the contract)21st consecutive day after the date the final certificate of analysis is received by the ClaimantAll other quality and/or condition disputes21st consecutive day after the date of completion of final discharge/delivery/destuffing of the container(s)CIF, CIFFO, C&F and similar (other disputes)1 year after (i) the date of the last bill of lading or (ii) the expiry of the contract period of delivery (including extension if any) whichever is earlierFOB (other disputes)1 year after (i) the date of the last bill of lading; or (ii) the expiry of the contract period of delivery (including extension if any) whichever is earlierAny other terms (other disputes)1 year after the last day of the contractual delivery, collection or arrival periodNon-payment of amounts payable60 consecutive days from the notice that a dispute has arisen (as provided for in the payment clause in the contract)
37Specific International Cotton Association Bylaws Type of ClaimTime limitIf the cotton is country-damaged when it arrives7 days after weighing or devanning, whichever is later (but always within 42 days from the date of arrival)Claim for false packed, mixed packed or plated bales26 weeks from the date of arrival of the cottonUnmerchantable cottonForeign matter in the cottonInternal moisture42 days from the date of arrival of the cottonNote: Other stipulations as to time (e.g. availability of cotton for inspection/return and keeping the cottonavailable for inspection/return)
38How do we interrupt the time bar under FOSFA rules? Serve a claim for arbitration by “rapid written communication”.In practice, this generally means:Appoint an arbitrator.Request that they appoint an arbitrator.Make it clear that you are referring the issue/dispute to arbitration.Identify the dispute and provide sufficient detail.By (or alternatively fax).
39Points to note about chains of sale In certain circumstances, Party A in a sale chain may commence against Party B, but Party B may have entered into a contract back-to-back with Party C.How should this be dealt with?Consult in-house lawyers immediately or external lawyers as appropriate.Consider time bar?Pass on the claim immediately?Also appoint an arbitrator?Consider other types of claim?Note: FOSFA Arbitrators have a discretion to extend time bars.
40Other “Red Flags” to beware of Enforcement issues – Consider domicile of contractual counterparty when commencing a claim.Systems in place to flag up unpaid invoices within the contractual time bar.Being aware of differences between contracts when entering into “back-to-back” deals.In cases where delays are envisaged with loading (even if it is simply a “paper” deal), consult in-house lawyers.e.g. where Force Majeure to potentially be relied on.
41SourcesSWANGARD, Michael – Commodity Arbitration in Arbitration in England with chapters on Scotland and Ireland Kluwer Law International BV, The Netherlands, pag. 105/144GAFTA - The Grain and Feed Trade Association. London.FOSFA INTERNATIONAL – Federation of Oils, Seeds and Fats Association Ltda. London.ANEC – Associação Nacional dos Exportadores de Cereais.