International rules for the interpretation of trade terms(2010)
By Rajat Gupta,ICC Chairman国际商会主席 Rajat Gupta
The global economy has given business broader access than ever before to markets all over the world. Goods are sold in more countries,in large quantities, and in greater variety. But as the volume and complexity of global sales increase, so do possibilities for misunderstandings and costly disputes when sale contracts are not adequately drafted.
The Incoterms® rules, the ICC rules on the use of domestic and international trade terms, facilitate the conduct of global trade. Reference to an Icoterms 2010 rule in a sale contract clearly
defines the parties' respective obligation sand reduces the risk of legal complications.
Since the creation of the Incoterms rules by ICC in 1936, this globally accepted contractual standard has been regularly updated to keep pace with the development of international trade. The Incoterms2010 rules take account of the continued spread of customs-free zones, the increase of electronic communications in business transactions, heightened concern about security in the movement of goods and consolidates in transport practices. Incoterms2010 updates and consolidates the 'delivered' rules, reducing the total number of rules from 13 to 11, and offers a simpler and clearer presentation of all the rules. Incoterms 2010 is also the first version of the Incoterms rules to make all references to buyers and sellers gender-neutral.
The broad expertise of ICC's Commission on Commercial Law and Practice, whose membership is drawn from all parts of the world and all trade sectors, ensures that the Incoterms 2010 rules respond to business needs everywhere.
ICC would like to express its gratitude to the members of the Commission, chaired by Fabio Bortolotti (Italy), to the Drafting Group, which comprised Charles Debattista(Co-Chair, France), Jens Bredow(Germany), Johnny Herre(Sweden), David Lwee(UK), Lauri Railas(Finland), Frank Reynolds(US),and Miroslav Subert(Szech Republic), and to Asko Raty (Finland)for assistance with the images depicting the 11 rules.
国际商会向Fabio Bortolotti(意大利)的商法和实践委员会的成员表示谢意,向由Charles Debattista(副组长,英国),Christoph Martin Radtke (副组长,法国),Jens Bredow (德国),JohnnyHerre (瑞典),David Lwee(英国),Lauri Railas (芬兰),Frank Reynold(美国),Miroslav Subert (捷克)组成的起草小组致谢,并且向对11条规则的表述给予帮助的Asko Raty (芬兰)致谢。
The Incoterms® rules explain a set of three-letter trade terms reflecting business-to-business practice in contracts for the sale of goods. The Incoterms® rules describe mainly the tasks, costs and risks involved in the delivery of goods from sellers to buyers.
How to use the Incoterms® 2010 rules如何适用Incoterms®2010规则
1.Incorporate the Incoterms® 2010 rules into your contract of sale If you want the Incoterms® 2010 rules to apply to your contract, you should make this clear in the contract, through such words as, “[the chosen Incoterms rule including the named place ,followed by] Incoterms® 2010”.
2.Choose the appropriate Incoterms rule. 选择最契合的Incoterms规则.
The chosen Incoterms rule needs to be appropriate to the goods, to the means of their transport, and above all to whether the parties intend to put additional obligations, for example such as the obligation to organize carriage or insurance, on the seller or on the buyer. The Guidance Note to each Incoterms rule contains information that is particularly helpful when making this choice. Whichever Incoterms rule is chosen, the parties should be aware the interpretation of their contract may well be influenced by customs particular to the port or place being used.
3.Specify your place or port as precisely as possible .尽可能精准地描述你方地址或港口名称
The chosen Incoterms rule can work only if the parties name a place or port, and will work best if the parties specify the place or port as precisely as possible.
A good example of such precision would be::
“FCA 38 Cours Albert 1er, Paris, France Incoterms 2010”.
Under the Incoterms rule Ex Works(EXW),Free Carrier(FCA), Delivered at Terminal(DAT), Delivered at Place(DAP),Delivered Duty Paid(DDP),
Incoterms 2010,FCA规则,法国,巴黎,38Cours Albert 1er
EXW 工厂交货(……指定地点)
FCA 货交承运人(……指定地点)”
DAT 终点站交货(……指定目的地)
DAP 地点交货 (……指定目的地)
DDP 完税后交货(……指定目的地)
Free Alongside Ship(FAS), and Free on Board(FOB),the named place is the place where delivery takes place and where risk passes from the seller to the buyer.
Under the Incoterms rule Carriage Paid to(CPT), Carriage and Insurance Paid to(CIP), Cost and Freight(CFR) and Cost, Insurance and Freight(CIF),the named place differs from the place of delivery. Under these four Incoterms rules, the named place is the place of destination to which carriage is paid.
Indications as to place or destination can helpfully be further specified by stating a precise point in that place or destination in order to avoid doubt or argument.
FAS 船边交货(……指定装运港)
FOB 船上交货(……指定装运港)
CPT 运费付至(……指定目的地)
CIP 运费、保险费付至(…指定目的地)
CFR 成本加运费(……指定目的港)
CIF 成本、保险费 加运费(指定目的港)
4.Remember that Incoterms rules do not give you a complete contract of sale
Incoterms rules do say which party to the sale contract has the obligation to make carriage or insurance arrangements, when the seller delivers the goods to the buyer, and which costs each party is responsible for.
Incoterms rules, however, say nothing about the price to be paid or the method of its payment. Neither do they deal with the transfer of ownership of the goods, or the consequences of a breach of contract. These matters are normally dealt with through express terms in the contract of sale or in the law governing that contract. The parties should be aware that mandatory local law may override any aspect of the sale contract, including the chosen Incoterms rules.
Main features of the Incoterm®2010 rules Incoterms®2010的主要特征
1.Two new Incoterms rules — DAT and DAP— have replaced the Incoterms 2000rules DAF,DES,DEQ and DDU The number of Incoterms rules has been reduced from 13 to 11. This has been achieved by substituting two rules that may be used irrespective of the agreed mode of transport — DAT, Delivered at Terminal, and DAP, Delivered at Place — for the incoterms 2000 rules DAF, DES, DEQ and DDU.
两个新的贸易术语,即DAT和DAP 代替了原来Incoterms2000的DAF,DES,DEQ和DDU术语。 贸易术语的数量从原来的13个减少到11个。Incoterms2010用两个可以不顾及已议定的运输模式的新术语——DAT,目的地交货和DAP,指定地交货——代替了Incoterms2000 中的DAF,DES,SEQ和DDU术语。
Under both new rules, delivery occurs at a named destination: in DAT, at the buyer’s disposal unloaded from the arriving vehicle (as under the former DEQ rule); in DAP, likewise at the buyer’s disposal, but ready for unloading (as under the former DAF,DES and DDU rules).
The new rules make the Incoterms 2000 rules DES and DEQ superfluous. The named terminal in DAT may well be in a port, and DAT can therefore safely be used in cases where the Incoterms 2000 rule DEQ once was. Likewise, the arriving “vehicle” under DAP may well be a ship and the named place of destination may well be a port: consequently, DAP can safely be used in cases where the Incoterms 2000 rule DES once was. These new rules, like their predecessors, are “delivered”, with the seller bearing all the costs (other than those related to import clearance, where applicable) and risks involved in bringing the goods to the named place of destination.
2.2.Classification of the 11 Incoterms® 2010rules  .Incoterms®2010中11种贸易术语的分类
The 11 Incoterms® 2010 rules are presentedin two distinct classes:
The first class includes the seven Incoterms® 2010 rules that can be used irrespective of the mode of transports elected and irrespective of whether one or more than one mode of transport is employed. EXW, FCA, CPT, CIP, DAT, DAP and DDP belong to this class. They can be used even when there is no maritime transport at all. It is important to remember, however, that these rules can be used in cases where a ship is used for part of the carriage.
In the second class of Incoterms® 2010rules, the point of delivery and the place to which the goods are carried to the buyer are both ports, hence the label “sea and inland waterway” rules. FAS,FOB, CFR and CIF belong to this class. Under the last three Incoterms rules, all mention of the ship’s rail as the point of delivery has been omitted in preference for the goods being delivered when they are “on board” the vessel. This more closely reflects modern commercial reality and avoids the rather dated image of the risk swinging to and from across an imaginary perpendicular line.
3.Rules for domestic and international trade 国内贸易和国际贸易的规定
Incoterms rules have traditionally been used in international sale contracts where goods pass across national boarders. In various areas of the world, however, trade blocs, like the European Union, have made border formalities between different countries less significant. Consequently, the subtitle of the Incoterms® 2010 rules formally recognize that they are available for application to both international and domestic sale contracts. As a result, the Incoterms® 2010 rules clearly state in a number of places that the obligation to comply with export/import formalities exists only where applicable.
传统的Incoterms规则只在国际销售合同中运用,此种交易货物运输都需跨越国界。在世界许多地区,商业集团如欧盟使得不同国家间的过关手续不再重要。所以,Incoterms®2010正式认可所有的贸易规则既可以适用于国内交易也可以适用于国际交易。所以,Incoterms®2010 在一些地方明确规定,只有在适当的时候,才有义务遵从进口或者出口的手续。
Two developments have persuaded ICC that amovement in this direction is timely. Firstly, traders commonly use Incoterms rulesfor purely domestic sale contract. The second reason is the greater willingnessin the Unites States to use Incoterm rules in domestic trade rather than theformer Uniform Commercial Code shipment and delivery terms.
4.Guidance Notes引言
Before each Incoterms® 2010 rule you will find a Guidance Note. The Guidance Notes explain the fundamentals of each Incoterms rule, such as when it should be used, when risk passes, and how costs are allocated between seller and buyer. The Guidance Notes are not part of the actual Incoterms® 2010 rules, but are intended to help the user accurately and efficiently steer towards the appropriate Incoterms rule for a particular transaction.
5.Electronic communication电子通信
Previous versions of Incoterms rules have specified those documents that could be replaced by EDI messages. ArticlesA1/B1 of the Incoterms® 2010 rules, however, now give electronic means of communication the same effect as paper communication, as long as the parties so agree or where customary. This formulation facilitates the evolution of new electronic procedures throughout the lifetime of the Incoterms® 2010 rules.
6.Insurance cover 保险范围
The Incoterms® 2010 rules are the first version of the Incoterms rules since the version of the Institute Cargo Clauses and take account of alterations made to those clauses. The Incoterms® 2010rules place information duties relating to insurance in articles A3/B3, which deal with contracts of carriage and insurance. These provisions have been moved from the more generic found in article A10/B10 of the Incoterms 2000 rules. The language in articles A2/B3 relating to insurance has also been altered with a view to clarifying the parties’ obligations in this regard.
Incoterms®规则2010是协会货物条款修订以来的最新版国际贸易术语规则,并就对那些条款的变更做了考虑。Incoterms® 规则2010把关系到保险的信息义务规定在A3/B3,这涉及到运输和保险合同。这些条款已经从更为普通的国际贸易术语2000中A10/B10的文章中删除。为了明确缔约双方的义务,条款A2/B3中涉及保险的行文也做了变化。
Security-related Clearances and information required for such clearances
There is heightened concern nowadays about security in the movement of goods, requiring verification that the goods do not pose a threat to life or property for reasons other than their inherent nature.
8.Terminal handling charges 集装箱码头费
Therefore, the Incoterms® 2010 rules have allocated obligations between the buyer and seller to obtain or to render assistance in obtaining security-related clearances, such as chain-of-custody information, in articles A2/B2 and A10/B10 of various Incoterms rules.
因此,Incoterms®规则 2010已经在买家和卖家间分配了义务,在与安全有关的清关获得或者提供帮助,例如在多种多样的国际贸易术语中A2/B2和A10/B10的监管链相关信息
Under Incoterms rules CPT, CIP, CFR, CIF,DAT, DAP, and DDP, the seller must make arrangements for the carriage of the goods to the agreed destination. While the freight is paid by the seller, it is actually paid for by the buyer as freight costs are normally included by the seller in the total selling price. The carriage costs will sometimes include the costs of handling and moving the goods within port or container terminal facilities and the carrier or terminal operator may well charge these costs to the buyer who receives the goods. In these circumstances, the buyer will want to avoid paying for the same service twice:
once to the seller as part of the total selling price and once independently to the carrier or the terminal operator. The Incoterms® 2010 rules seek to avoid this happening by clearly allocating such costs in articles A6/B6 of the relevant Incoterms rules.
9. String sales 连环合同
In the sale of commodities, as opposed to the sale of manufactured goods, cargo is frequently sold several times during transit “down a string” when this happens, a seller in the middle of the string don’t have to ship the goods because these have already been shipped by the first seller in the string. The seller in the middle of the string therefore performs its obligations towards its buyer not by shipping the goods, but by “procuring” goods that have been shipped. For clarification purposes, Incoterms® 2010 rules include the obligation to “procure goods shipped” as an alternative to the obligation to ship goods in the relevant Incoterms rules.
与工业制成品的销售不同,在农矿产品的销售中,货物经常在沿销售链运转过程中被频繁销售多次。这种情况下,在运输中的卖家不用再运输货物,因为货物已被第一个卖家装船运输了。中途的卖方通过接收货物而非运输货物向买方履行义务。为明确起见,Incoterms® 规则2010在相关规定中把提取已经运输的商品的义务作为运输商品义务的替换。
Variants of Incoterms rules国际贸易术语解释通则的变体
Sometimes the parties want to alter anIncoterms rules. The Incoterms 2010 rules do not prohibit such alteration, but there are dangers in so doing. In order to avoid any unwelcome surprises, the parties would need to make the intended effect of such alterations extremely clear in their contract. Thus, for example, if the allocation of costs in the Incoterms 2010 rules is altered in the contract, the parties should also clearly state whether they intend to vary the point at which the risk passes from seller to buyer.
Status of this introduction本导言的功能地位
This introduction gives general information on the use and interpretation of the Incoterms 2010 rules, but does not form part of those rules.
Explanation of terms used in the Incoterms2010 rules
As in the incoterms rules, the seller’s and buyer’s obligations are presented in mirror fashion, reflecting under column A the seller’s obligations and under column B the buyer’s obligations. These obligations can be carried out personally by the seller or the buyer or sometimes, subject to terms in the contract or the applicable law, through intermediaries such as carriers, freight forwarders or other persons nominated by the seller or the buyer for a specific purpose.
The text of the Incoterms 2010 rules is meant to be self-explanatory. However, in order to assist users the following text sets out guidance as to the sense in which selected terms are used throughout the document.
Carrier: For the purposes of the Incoterms2010 rules, the carrier is the party with whom carriage is contracted.
Customs Formalities: These are requirements to be met in order to comply with any applicable customs regulations and may include documentary, security, information or physical inspection obligations.
Delivery: This concept has multiple meanings in trade law and practice, but in the Incoterms 2010 rules, it is used to indicate where the risk of loss of or damage to the goods passes from the seller to the buyer.
Delivery document: This phrase is now used as the heading to article A8. It means a document used to prove that delivery has occurred. For many of the Incoterms 2010 rules, the delivery document is a transport document or corresponding electronic record. However, with EXW, FCA, FAS and FOB, the delivery document may simply be a receipt. A delivery document may also have other functions, for example as part of the mechanism for payment.
Electronic record or procedure: A set of information constituted of one or more electronic messages and, where applicable, being functionally equivalent with the corresponding paper document.
Packaging: this word is used for different purposes: 包装:此词因语境不同有不同含义:
1.The packaging of the goods to comply with any requirements under the contract of sale.
2.The packaging of the goods so that they are fit for transportation.
3.The stowage of the packaged goods within a container or other means of transport.
In the Incoterms 2010 rules, packaging means both the first and second of the above. The Incoterms 2010 rules do not deal with the parties’ obligations for stowage within a container and therefore, where relevant, the parties should deal with this in the sale contract.