《2000年国际贸易术语解释通则》－－INTRODUCTION（一）（英文版）

INTRODUCTION

1.PURPOSE AND SCOPE OF INCOTERMS
Tbe purpose of Incoterms is to provide a set of international rules for the interpretation of the most commonly used trade terms in foreign trade. Thus, the uncertainties of different interpretations of such terms in different countries can be avoided or at least reduced to a considerable degree.
Frequently, parties to a contract are unaware of the different trading practices in their respective countries. This can give rise to misunderstandings, disputes and litigation, with all the waste of time and money that this entails. In order to remedy these problems, the International Chamber of Commerce first published in 1936 a set of international rules for the interpretation of trade terms.
These rules were known as "Incoterms 1936". Amendments and additions were later made in 1953, 1967, 1976, 1980, 1990 and presently in 2000 in order to bring the rules in line with current international trade practices.
It should he stressed that the scope of Incoterms is limited to matters relating to the rights and obligations of the parties to the contract of sale with respect to the delivery of goods sold (in the sense of "tangibles", not including "intangibles" such as computer software).
It appears that two particular misconceptions about Incoterms are very common.
First, Incoterms are frequently misunderstood as applying to the contract of carriage rather than to the contract of sale. Second, they are sometimes wrongly'' assumed to provide for all the duties which parties may wish to include in a contract of sale.
As has always been underlined by ICC, Incoterms deal only with the relation between sellers and buyers under the contract of sale, and, moreover, only do so in some very distinct respects.
While it is essential for exporters and importers to consider the very practical relationship between the various contracts needed to perform an international sales transaction - where not only the contract of sale is required, but also contracts of carriage, insurance and financing: - Incoterms relate to only one of these contracts, namely the contract of sale.
Nevertheless, the parties'' agreement to use a particular Incoterms, would necessarily implications for the other contracts. To mention a few examples, a having agreed to a CFR or CIF - contract cannot perform such a contract¡¡¡¡ by any other mode of transport than carriage by sea, since under these he must present a bill of lading or other maritime document to the buyer which is simply not possible if other modes of transport are used. Furthermore, -&c document required under a documentary credit would necessarily depend upon the means of transport intended to he used.
Second, Incoterms deal with a number of identified obligations imposed on the parties - such as the seller''s obligation to place the goods at the disposal of the buyer or hand them over for carriage or deliver them at destination and with the distribution of risk between the parties in these cases.
Further, they deal with the obligations to clear the goods for export and import, the packing of the goods, the buyer''s obligation to take delivery as well as the obligation to provide proof that the respective obligations have been duly fulfil1ed. Although Incoterms are extremely important for the implementation of the contract of sale, a great number of problems which may occur in such a contract are not dealt with at all, like transfer of ownership and other property rights. breaches of contract and the consequences following from such breaches m well as exemptions from liability in certain situations. It should be stressed that Incoterms are not intended to replace such contract terms that are needed for a complete contract of sale either by the incorporation of standard terms or by individually negotiated terms.
Generally,Incoterms do not deal with the consequences of breach of contract and any exemptions from liability owing to various impediments. These questions must he resolved by other stipulations in tile contract of sale and tile applicable law.
Incoterms have always been primarily intended for use where goods are sold for delivery across national boundaries: hence, international commercial terms.
However, Incoterms¡¡ are in practice at times also incorporated into contracts for the sale of goods within purely domestic markets. Where Incoterms are so used, the A2 and B2 clauses and any other stipulation of other articles dealing with export and import do, of course, become redundant.

2. WHY REVISIONS OF INCOTERMS?
The main reason for successive revisions of Incoterms has been the need to adapt them to contemporary commercial practice. Thus, in the 1980 revision the term Free Carrier (now FCA) was introduced m order to deal with the frequent case where the reception point in maritime trade was no longer the traditional FOB ;point (passing of the ship''s rail) but rather a point on land, prior to loading on board a vessel, where the goods were stowed into a container for subsequent transport by sea or by different means of transport in combination (so called combined or multimodel transport).
Further, in the 1990 revision of Incoterms, the clauses dealing with the seller''s obligation to provide proof of delivery permitted a replacement of paper documentation by EDI ‑ messages provided the parties had agreed to communicate electronically. Needless to say, efforts are constantly made to improve upon the drafting and presentation of Incoterms in order to facilitate their practical implementation.

3. INCOTERMS 2000
During the process of revision, which has taken about two years, ICC has done its best to invite views and responses to successive drafts from a wide ranging spectrum of world traders, represented as these various sectors are on the national committees through which ICC　 operates. Indeed, it has been gratifying to see that this revision process has attracted far more reaction from users around the world than any of the previous revisions of Incoterms. The result of this dialogue is Incoterms 2000, a version which when compared with Incoterms 1990 may apperar to have effected few changes. It is clear, however, that Incoterms now enjoy world wide recognition and ICC has therefore decided to consolidate upon that recognition and avoid change for its own sake. On the other hand,serious efforts have been made to ensure that the wording used in Incoterms 2000 clearly and accurately reflects trade practice. Moreover, substantive changes have been made in two areas: the customs clearance and payment of duty obligations under FAS and DEQ; and the loading and unloading obligations under FCA.
All changes, whether substantive or formal have been made on the basis of thorough research among users of Incoterms and particular regard has been given to queries received since 1990 by the Panel of Incoterms Experts, set up as an additional service to the users of Incoterms.

4. INCOPRORATION OF INCOTERMS INTO THE CONTRACT OF SALE
In view of the changes made to Incoterms from time to time, it is important to ensure that where the parties intend to incorporate Incoterms into their contract of sale, an express reference is always made to the current version of Incoterms. This may easily be overlooked when, for example, a reference has been made to an earlier version in standard contract forms or in order forms used by merchants. A failure to refer to the current version may then result in disputes as to whether the parties intended to incorporate that version or an earlier version as a part of their contract. Merchants wishing to use Incoterms　 2000 should therefore clearly specify that their contract is governed by " Incoterms
2000".

5. THE STRUCTURE OF INCOTERMS
In 1990, for case of understanding, the terms were grouped in four basically different categories: namely starting with the term whereby the seller only makes the goods available to the buyer at the seller’s own premises (the "E" ; term Ex works); followed by the second group whereby the seller is called upon to deliver the goods to a carrier appointed by the buyer (the "F"; terms FCA, FAS and FOB); continuing with the "C"; terms where the seller has to contract for carriage, but without assuming the risk of loss of or damage to the goods or additional costs due to events occurring after shipment and dispatch (CFR, CIF, CPT and CIP);　 and, finally, the "D" ; terms whereby the seller has to bear all costs and risks needed to bring the goods to the place of destination; (DAF, DES, DEQ,　 DDU　 and DDP). The following chart sets out this classification of the trade terms.
INCOTERMS 2000
Group EDeparture
EXW　 Ex Works
( ... named place)
Group FMain carriage unpaid　
FCA　 Free Carrier
( ... named place)
FAS　 Free Alongside Ship
( ... named port of shipment)
FOB 　Free On Board
( ... named port of shipment)
Group CMain carriage paid　
CFR　 Cost and Freight
( ... named port of destination)
CIF 　 Cost, Insurance and Freight
( . . . named place of destination)
CPT　 Carriage paid To　
( ... named port of destination)
CIP　 Carriage and Insurance Paid To　
( ... named port of destination)
Group D Arrival
DAF　 Delivered At Frontier　　　
( ... named place)
DES 　 Delivered Ex Ship
( ... named port of destination)
DEQ 　 Delivered Ex Quay
( ... named port of destination)
DDU 　 Delivered Duty Unpaid
( ... named place of destination)
DDP　 Delivered Duty Paid
( ... named place of destination)

Further, under all terms, m in Incoterms 1990, the respective obligations of the parties have been grouped under 10 he~ where each heading on the seller, 8 side "mirrors,, the position of the buyer with respect to the same subject matter.

6. TERMINOLOGY
While drafting Incoterms 2000, considerable efforts have been made to achieve as much consistency as possible and desirable with respect to the various expressions used throughout the thirteen terms. Thus, the use of different expressions intended to convey the same meaning has been avoided. Also, whenever possible, the same expressions as appear in the 1980 UN Convention on Cont; for the International Sale of Goods ( CISG) have been used "Shipper"
In some cases it has been necessary to use the same term to express two different meanings simply because there has been no suitable alternative.
Traders will he familiar with this difficulty both in the context of contracts of sale and also of contracts of carriage. Thus, for example, the term "shipper" signifies both the person handing over the goods for carriage and the person who makes the contract with the carder: however, these two "shippers" may he different persons, for example under a FOB contract where the seller would hand over the goods for carriage and the buyer would make the contract with the carrier.
"Delivery"
It is particularly important to note that the term "delivery" is used in two different senses in Incoterms First, it is used to determine when the seller has fulfilled his delivery obligation which is specified in the A4 clauses throughout Incoterms. Second, the term "delivery" is also used in the context of the buyer''s obligation to take or accept delivery of the goods, an obligation which appears in the B4 clauses throughout Incoterms. Used in this second context, the word "delivery" means first that the buyer "accepts" the very nature of the "C"; terms, namely that the seller fulfils his obligations upon the shipment of the goods and, second that the buyer is obliged to receive the goods. This latter obligation is important so as to avoid unnecessary charges for storage of the goods until they have been collected by the buyer. Thus, for example under CFR and CIF contracts, the buyer is bound to accept delivery of the goods and to receive them from the carder and if the buyer fails to do so, he may become liable to pay damages to the seller who has made the contract of carriage with the carder or, alternatively, the buyer might have to pay demurrage charges resting upon the goods in order to obtain the carrier''s release of the goods to him. When it is said in this context that the buyer must "accept delivery", this does not mean that the buyer has accepted the goods as conforming with the contract of sale, but only that he has accepted that the seller has performed his obligation to hand the goods over for carriage in accordance with the contract of carriage which he has to make under the A3　 a) clauses of the "C" ‑ terms. So, if the buyer upon receipt of the goods at destination were to find that the goods did not conform to the stipulations m the contract of sale, he would he able to use any remedies which the contract of sale and the applicable law gave him against the seller, matters which, as has already been mentioned, he entirely outside the scope of Incoterms.
Where appropriate, Incoterms 2000 have used the expression " placing the goods at the disposal X'' the buyer when the goods are made available to the buyer at a particular place. This expression is intended to bear the same meaning as that of the phrase ''landing over the goods" used in the 1980 United Nations Convention on Contracts for the International Sale of Goods.
"Usual"
The word "usual" appears in several terms, for example in EXW with respect to the time of delivery (A4) and in the "C" ‑ terms with respect to the documents which the seller is obliged to provide and the contract of carriage which the seller must procure (A8, A3).　 It can, of course, he difficult to tell precisely what the word "usual" means, however, in many cases, it is possible to identify what persons in the trade usually do and this practice will then he the guiding fight. In this sense, the word "usual" is rather more helpful than the word "reasonable" which requires an assessment not against the world of practice but against the more difficult principle of good faith and fair dealing. In some circumstances it my well be necessary to decide what is "reasonable" However, for the reasons given, in Incoterms the word "usual" has been generally preferred to the word "reasonable".
"Charges"
With respect to the obligation to clear the goods for import it is important to determine what is meant by "charges" which must he paid upon import of the goods. In Incoterms 1990 the expression "official charges payable upon exportation and importation of the goods" was used in DDP A6.　 In Incoterms 2000 DDP A6 the word "official" has been deleted, the reason being that this word gave rise to some uncertainty when determining whether the charge was "official" or not. No change of substantive meaning was intended through this deletion. The "charges" which must be paid only concern such charges as are a necessary consequence of the import as such and which thus have to be paid according to the applicable import regulations. Any additional charges levied by private parties in connection with the import are not to he included in these charges, such as charges for storage unrelated to the clearance obligation. However, the performance of that obligation may well result m some costs to customs brokers or freight forwarders if the party bearing the obligation does not do the work himself.
"Ports" , "places" , "Points" and "premises"
So far as concerns the place at which the goods are to he delivered, different expressions are used in Incoterms. In the terms intended to he used exclusively for carriage of goods by sea ‑ such as FAS, FOB, CFR, CIF, DES and DEQ ‑ the expressions " port of shipment " and " port of destination " have been used. In all other cases the word "place" has been used. In some cases, it has been deemed necessary also to indicate a "point" within the port or place as it may he important for the seller to know not only that the goods should be delivered in a particular area like a city but also where within that area the goods should be placed at the disposal of the buyer. Contracts of sale would frequently lack information in this respect and Incoterms therefore stipulate that if no specific point has been agreed within the named place, and if there are several points available, the seller may select the point which best suits his purpose (as an example see FCA A4).　 Where the delivery point is the seller''s place the expression "the seller''s premises" (FCA A4) A4) has been used.
"Ship" and "vessel"
In the terms intended to be used for carriage of goods by sea, the expressions " ship" and "vessel" are used as synonyms. Needless to say, the term "ship" would have to he used when it is an ingredient in the trade term itself such as in ;free alongside ship" (FAS)　 and "delivery ex ship" (DES). Also, in view of the traditional use of the expression "passed the ship''s rail" in FOB, the word "ship" has had to he used in that connection.
"Checking and “ inspection "
In the A9 and B9　 clause of Incoterms the headings "checking ; packaging and marking and inspection of the goods" respectively have been used. Although the words "checking" and " inspection" are synonyms, it has been deemed appropriate to use the former word with respect to the seller''s delivery obligation under A4 and to reserve the latter for the particular case when a "pre ;: shipment inspection" is performed, since such inspection normally is only required when the buyer or the authorities of the export or import country want to ensure that the goods conform with contractual or official stipulations before they are shipped

7. THE SELLER''S DELIVERY OBLIGATIONS
Incoterms focus on the seller''s delivery obligation. The precise distribution of functions and costs in connection with the seller''s delivery of the goods would normally not cause problems where the parties have a continuing commercial relationship. They would then establish a practice between themselves ( "course of dealing which they would follow in subsequent dealings in the same manner as they have done earlier. However, if a new commercial relationship is established or if a contract is made through the medium of brokers-as is common in the sale of commodities　 , one would have to apply the stipulations of the contract of sale and, whenever Incoterms　 2000 have been incorporated into that contract, apply the division of functions, costs and risks following thereforeIt would, of course, have been desirable if Incoterms could specify in as detailed a manner as possible the duties of the parties in connection with the delivery of the goods. Compared with Incoterms 1990, further efforts have been Made in this respect in some specified instances (see for example FCA A4) But it has not been possible to avoid reference to customs of the trade in FAS and FOB A4(“in the manner customary at the port"), the reason being that particularly in commodity trade the exact manner in which the goods are delivered for carriage m FAS and FOB contracts vary in the different sea ports.

8. PASSING OF RISKS AND COSTS RELATING TO THE GOODS
The risk of loss of or damage to the goods, as well as the obligation to bear the costs relating to the goods, passes from the seller to the buyer when the seller has fulfilled his obligation to deliver the goods. Since the buyer should not he given the possibility to delay the passing of the risk and costs, all terms stipulate that the passing of risk and costs may occur even before delivery, if the buyer does not take delivery as agreed or fails to give such instructions (with respect to time for shipment and/or place for delivery) as the seller may require in order to fulfil his obligation to deliver the goods.
It is a requirement for such premature passing of risk and costs that the goods have been identified as intended for the buyer or, as is stipulated in the terms, set aside for him (appropriation).
This requirement is particularly important under EXW, since under all other terms the goods would normally have been identified as intended for the buyer when measures have been taken for their shipment or dispatch ("F"; and “C”; terms) or their delivery at destination ("D"; terms). In exceptional cases, however, the goods may have been sent from the seller in bulk without identification of the quantity for each buyer and, if so, passing of risk and cost does not occur before the goods have been appropriated as aforesaid (cf. also article 69.3 of the 1980 United Nations Convention on Contracts for the International Sale of Goods).