This is a short practical guide to international sales terms, providing a handy guide for drafting typical sales agreement clauses. The introductory chapter provides a short introduction to the United Nations Convention on Contracts for the International Sale of Goods (CISG) and Swiss law with regard to legal issues not dealt with by the CISG (i.e. assignment, set-off, limitation periods, validity of the contract etc.) as well as differences in this regard compared to other major jurisdictions (in particular England and the U.S.). The introductory part also deals with more general points of concern with regard to international sales contracts (eg. US. and European export control regulations, international tax law issues etc.) and best practices regarding the incorporation of the terms into the contract (the battle of forms problem). The main part of the book contains the annotated international sales terms and conditions (inter alia Terms of Payment, Retention of Title, Delivery, Transfer of Risk, Conformity of the Contract Goods and Remedies in case of Non-conformity, Confidentiality, Limitation of Liability, Termination, Governing Law and Arbitration Clause). The contents of each clause and its effect in the context of the applicable law are separately discussed and analysed. When deemed appropriate, alternatives for the drafting of individual clauses are provided.
The second edition of this book incorporates inter alia more recent changes in relation to relevant statutory provisions of the suggested governing laws and available trade terms and provides updated contract terms as well as revised annotations.
In particular, the second edition includes a detailed account of
" the Incoterms 2010 introduced by the International Chamber of Commerce,
" new statutory provisions of Swiss law in relation to applicable limitation periods for warranty claims and the control of general terms and conditions,
" the latest developments of EU and US export control regulations and their impact for international sales transactions,
" up to date international case law in relation to the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Against the background of the ongoing European sovereign debt crisis, the second edition also discusses potential contractual tools to limit the risk exposure of exporters in case individual Member States should leave the Euro zone.
Further new features comprise of a short introduction into the proposed Common European Sales Law (CESL) as a potential alternative legal framework for the CISG in the future as well as the meaning and impact of indemnity clauses in sales contracts.
Patrick Ostendorf is Professor of Commercial Law at the University of Applied Studies, Bielefeld, and Of Counsel in the law firm Orth Kluth in Dusseldorf.
Introduction A. General Part I. Role and impact of the law governing a sales contract II. The suggested choice of law for the present International Sales Terms III. The CISG IV. Swiss law as the supplementary governing law of choice V. Outlook: The Proposal for a Common European Sales Law (CESL) - a potential alternative for the CISG? VI. Relevant laws beyond the governing law of the contract B. The Main Contract Document I. The benefit of a countersigned main contract document II. Price III. Payment Terms IV. Delivery and Trade Terms C. The International Sales Terms I. General Provisions II. Payment Terms III. Delivery Terms IV. Retention of Title V. Product Defects VI. Exclusion/Limitation of Damages Claims VII. Limitation of Actions VIII. Export Control Regulations IX. Avoidance by the Seller X. Confidentiality Obligations XI. Force Majeure XII. Entire Agreement, Written Form, Severability and Anti-Assignment Clause XIII. The governing law of the contract XIV. Arbitration and Litigation Appendix I. The Sales Documentation Put Together II. The United Nations Convention on Contracts for the International Sale of Goods III. Excerpts from the Swiss Code of Obligations (Obligationenrecht) and other relevant Swiss statutes