《2000年国际贸易术语解释通则》－－INTRODUCTION（三）（英文版）

INTRODUCTION
18. THE RECOMMENDED USE
In some cases the preamble recommends the use or non ; use of a particular term.
This is particularly important with respect to the choice between FCA and FOB.
Regrettably, merchants continue to use FOB when it is totally out of place thereby causing the seller to incur risks subsequent to the handing over of the goods to the carrier named by the buyer. FOB is only appropriate to use where the goods are intended to be delivered "across the ship''s rail" or, in any event, to the ship and not where the goods are handed over to the carrier for subsequent entry into the ship, for example stowed in containers or loaded on lorries or wagons in so ; called roll on ; roll off traffic. Thus, a strong warning has been made m the preamble of FOB that the term should not he used when the parties do not intend delivery across the ship''s rail.
It happens that the parties by mistake use terms intended for carriage of goods by sea also when another mode of transport is contemplated. This may put the seller in the unfortunate position that he cannot fulfil his obligation to tender the proper document to the buyer (for example a bill of lading, sea waybill or the electronic equivalent). The chart printed at paragraph 17 above makes clear which trade term in Incoterms 2000 it is appropriate to use for which mode of transport. Also, it is indicated in the preamble of each term whether it can he used for all modes of transport or only for carriage of goods by sea.

19. THE BILL OF LADING AND ELECIRONIC COMMERCE
Traditionally, the on board bill of lading has been the only acceptable document to he presented by the seller under the CFR and CIF terms. The bill of lading fulfils three important functions, namely:
-proof　 of delivery of the goods on board the vessel;
-evidence of the contract of carriage; and
-a means of transferring rights to the goods in transit to another party by the transfer of the paper document to him.
Transport documents other than the bill of lading would fulfil the two first mentioned functions, but would not control the delivery of the goods at destination or enable a buyer to sell the goods in transit by surrendering the paper document to, his buyer. Instead, other transport documents would name the party entitled to receive the goods at destination. The fact that the possession of the bill of lading is required in order to obtain the goods from the carrier at destination makes it particularly difficult to replace by electronic means of communication.
Further, it is customary to issue bills of lading in several originals but it is, of course, of vital importance for a buyer or a bank acting upon his instructions in paying the seller to ensure that all originals are surrendered by the seller (so ;called "full set"). This is also a requirement under the ICC Rules for Documentary Credits (the so ; called ICC Uniform Custom and Practice, “UCP” ; current version at date of publication of Incoterms 2000:
ICC publication
The transport document must evidence not only delivery of the goods to the carrier but also that the goods, as far as could he ascertained by the carrier, were received m good order and condition. Any notation on the transport document which would indicate that the goods had not been m such condition would make the document "unclean" and would thus make it unacceptable under the UCP.
In spite of the particular legal nature of the bill of lading it is expected that it will be replaced by electronic means in the near future. The 1990 version of Incoterms had already taken this expected development into proper account. According to the A8 clauses, paper documents may he replaced by electronic messages provided the parties have agreed to communicate electronically. Such messages could he transmitted directly to the party concerned or through a third party provided added ; value services. One such service that can he usefully provided by a third party is registration of successive holders of a bill of lading. Systems providing such services, such as the so ; called BOLERO service, Many require further support by appropriate legal norms and principles as evidenced by the CMI 1990 Rules for Electronic Bills of Lading and articles 16 ;17 of the 1996 UNCY1RAL Model Law on Electronic Commerce.

20. NON NEGOTIABLE TRANSPORT DOCUMENTS INSTEAD OF BILLS OF LADING
In recent years, a considerable simplification of documentary practices has been achieved. Bills of lading are frequently replaced by non;negotiable documents similar to those which are used for other modes of transport than carriage by sea. These documents are called "sea waybills", liner waybills", freight receipts", or variants of such expressions. Non ~ negotiable documents are quite satisfactory to use except where the buyer wishes to sell the goods in transit by surrendering a paper document to the new buyer. In order to make this possible, the obligation of die seller to provide a bill of lading under (CFR and CIF must necessarily he retained. However, when the contracting parties know that the buyer does not contemplate selling the goods in transit, they may specifically agree to relieve the seller from the obligation to provide a hill of lading, or, alternatively, they may use CPT and CIP where there is no requirement to provide a bill of lading.

21. THE RIGHT TO GIVE INSTRUCTIONS TO THE CARRIER
A buyer paying for the goods under a "C" ; term should ensure that the seller upon payment is prevented from disposing of the goods by giving new instructions to the carrier. Some transport documents used for particular modes of transport (air, road or rail) offer the contracting parties a possibility to bar the seller from giving such new instructions to the carrier by providing the buyer with a particular original or duplicate of the waybill. However, the documents used instead of bills of lading for maritime carriage do not normally contain such a barring function. The Comite Maritime International has remedied this shortcoming of the above ; mentioned documents by introducing the 1990 "Uniform Rules for Sea Waybills” enabling the parties to insert a "no ; disposal" clause whereby the seller surrenders the right to dispose of the goods by instructions to the carrier to deliver the goods to somebody else or at another place than stipulated in the waybill.

22. ICC ARBITRATION
Contracting parties who wish to have the possibility of resorting to ICC Arbitration in the event of a dispute with their contracting partner should specifically and clearly agree upon ICC Arbitration m their contract or, m the event that no dude contractual document exists, in the exchange of correspondence which constitutes the agreement between them. The fact of incorporating one or more Incoterms in a contract or the related correspondence does NOT by itself constitute an agreement to have resort to ICC Arbitration.
The following standard arbitration clause is recommended by ICC:
"All disputes out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.”