What form does a foreign trade contract take? Foreign trade contracts

Before concluding a foreign trade agreement, find out the legal status, financial position and business reputation of the counterparty. Make sure that the lawyers drafting the contract have a good command of the language of your partner's country. Gain a clear understanding of the meaning of terms used in international business.

Nikolay Chudakov,

Director, Editor-in-Chief, legal reference system "System Lawyer"

In this article you will read:

• Important nuances of concluding a foreign trade contract
• Errors in the foreign trade supply agreement
• Sample foreign trade agreement

Error 1. Concluded a foreign trade contract without checking the foreign counterparty

The legal status of a foreign person is confirmed by an extract from the trade register of the country of origin or another document issued in accordance with the legislation of the country of its location (clause 3 of the letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 25, 1996 No. 10).

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Consequences. If it turns out that the foreign counterparty is not registered as a legal entity or the agreement was signed on its behalf by an employee who does not have the authority to do so, then you should expect problems with the execution of the agreement. There is a high risk that the delivery of goods will not take place or will not be delivered on time. An unreliable supplier may not deliver the goods in in full or with shortcomings. But you will not be able to make a claim in connection with this (and return the prepayment). It will not be possible to find a foreign partner to serve on him, for example, a claim or lawsuit and summons to appear in an arbitration court.

How to do it right. You can assess the reliability of a foreign counterparty (in particular, check whether the company is really founded and registered in its country) by contacting, for example, chambers of commerce and industry or credit bureaus of the countries of the intended partners.

Most information about foreign companies, including financial ones, is not a commercial secret, so information about them can also be obtained from open sources - address (Jaeger Waldmann International Telex Teletex Directory, Teleurope, Marconis International Register, "Address-Europe") or proprietary reference books (Moodys Industrial Manual, Stock Exchange Official Yearbook), annual reports, prospectuses.

Error 2. Did not check the text of the contract in a foreign language

As a rule, a foreign trade contract is drawn up in two copies and in two languages. Therefore, there is a risk that discrepancies may arise between these texts due to incorrect translation or unclear understanding of the meaning of terms used in foreign trade.

Consequences. If there are discrepancies, the court will decide which text of the contract - in Russian or a foreign language - to apply. And it may turn out that it will be a text in a foreign language. Let me give you an example. A US company rented an office from a Russian landlord. The text of the agreement in Russian contained the wording “All disputes arising between the parties in relation to or in connection with this Agreement are subject to final resolution in the Arbitration Court of Moscow, Russia.”

However, the tenant filed a claim not with the Moscow Arbitration Court (which is part of the system of state courts), but with the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (ICAC) 1 . As a result, the ICAC decided that it was competent to consider this dispute, since “in the lease agreement in English, which, according to clause 19.2, has priority over the Russian text, the arbitration clause refers not to the Moscow Arbitration Court, but on arbitration in Moscow according to the rules of the ICAC, which is what is taking place in the present proceedings” (decision of the ICAC at the RF Chamber of Commerce and Industry of December 9, 2004 No. 74 / 2004). For the negative consequences of an incorrect name of the court in a contract, see section “Mistake 4.”

How right. Make sure that the lawyers who review the foreign trade supply agreement are fluent in foreign language, on which the contract was drawn up. In addition, it is advisable to include in the contract a condition that the text in Russian has priority (clause 7.5 in the sample foreign trade contract).

1 Arbitration courts (including the ICAC) are not part of the judicial system of the Russian Federation; they are alternative way protection of rights. The basic principle of arbitration proceedings is the voluntary compliance by the parties with the arbitration decision.

Mistake 3. Choosing an unfavorable applicable law or not agreeing on it

Applicable law is the law that is subject to application to the rights and obligations of the parties under the contract (clause 1 of Article 1210 of the Civil Code of the Russian Federation, hereinafter referred to as the Civil Code of the Russian Federation). The parties can choose it themselves. This may be the law of one of the parties to the contract or the law of a third state in which the supplier and buyer are not registered.

Consequences. If the dispute is considered under the national law of a foreign company, then the Russian side is at a disadvantage. After all, she does not know all the features of the law of another country as well as Russian law. As a result, when concluding a contract, and even more so when a dispute arises, the services of more qualified lawyers familiar with the law of the partner country will be required, and often the services of lawyers of the country whose national law is chosen as the governing law. As a result, signing the contract will cost a significantly larger amount.

If the agreement for the conclusion of a foreign trade contract does not indicate the applicable law at all, then the arbitration (regardless of which country it is located) will determine it in accordance with the conflict of laws rules that it considers applicable (Vienna Convention on International Contracts of 1980). purchase and sale of goods, Article 28 of the Law of the Russian Federation of July 7, 1993 No. 5338–1 “On International Commercial Arbitration”). Moreover, these can be norms of both international and national law. Often conflict of law rules different countries indicate that the law of the seller’s country is applicable to an international sales contract. This provision is also contained in Art. 1211 of the Civil Code of the Russian Federation. Thus, if the contract for the import of goods into Russia does not stipulate the applicable law, then general rule it will be the law of the seller's country.

How to do it right. When developing and concluding a foreign trade contract, consider two circumstances. First, ask your lawyers to make such a contract much more detailed than regular contracts with Russian companies. Try to resolve all possible controversial situations in it and fix the rules for their resolution. After all, if a controversial situation arises that is not regulated by a foreign trade contract, then the law established in accordance with the conflict of laws rule will be applied, which the arbitrators will consider in in this case applicable. And much will depend on the laws of which country this dispute will be considered.

• Head of sales department: how to become an excellent manager

Secondly, even in the most detailed contract, you need to indicate the applicable law - in case some situation still remains unresolved (Figure, clause 5.3 of the contract). Try to invite the counterparty to choose Russian law. If he does not agree to this, then even before signing the contract, contact specialists who have experience in working with the law of the seller’s country so that they analyze the text of the contract for possible risks associated with the peculiarities of the legislation of that country.

Additional Information. Even if the parties have agreed that Russian law is applicable, the court will only apply it to those issues that are not regulated by the Vienna Convention on Contracts for the International Sale of Goods.

Mistake 4. Agreeing on an unfavorable arbitration clause

The contract must define not only the law that will be applied in the event of a dispute, but also the court that will hear the dispute (arbitration clause). The parties may appeal to the state court of the country of the seller or the country of the buyer, or to one of the international arbitration courts. Thus, you must first choose between state and arbitration courts, and then identify a specific court (either a specific arbitration court, or the country whose state court will hear the dispute).

Consequences. An irrational choice of court can lead to unnecessary costs. If the dispute is to be heard in a foreign court, then, firstly, you will need a lawyer who has the right to speak in such a court and is familiar with its procedure.

Secondly, conducting a process in many foreign countries requires more time and costs than considering a case in Russian state courts.

Finally, consideration of a case in an arbitration court has its own characteristics. The process can take several months, but the decision is final and is very rarely challenged in state courts (such a review can only be applied for on procedural grounds, but not if the losing party does not agree with the decision on the merits).

How right. Firstly, you need to correctly name the court you have chosen in the contract - it is important not to make mistakes in the terms. The fact is that in Russia, state courts that consider economic disputes in the business sphere are called arbitration courts (for example, the Moscow Arbitration Court). In other countries and in international law the term “arbitration court” usually means a non-state arbitration court (see section “Error 1”).

Secondly, if you have chosen one of the international arbitration courts, ask the lawyers to check its regulations and include in the text of the contract an arbitration clause exactly in the wording given in the regulations (Figure, clause 5.2 of the contract). This will eliminate the possibility that the case will end up being considered by a court that is not desirable for you.

Error 5. The basic terms of delivery were mixed up

Often the parties to a contract are not familiar with trade practices in different countries. To make it easier for them to develop contracts, the International Chamber of Commerce has compiled a list of the most typical options for their conditions - Incoterms supply bases. In the 2010 edition, there are 11 such options. Four of them are applicable only for sea and inland waterway transport, and the remaining seven are for all types of transport.

Consequences. Incoterms are applied by agreement of the parties. But if in the contract you refer to the corresponding Incoterms basis, then in the event of a dispute the court will apply it and will not take into account your assurances of ignorance of what this basis means.

How right. Carefully read (preferably with a lawyer) the description of all Incoterms terms and explanations to them. Calculate in advance which conditions will be more profitable for you as a buyer. If you have chosen, for example, the EX Works basis (ex-factory), directly indicate it in the contract, and also write the address of the place from where the buyer is obliged to pick up the goods (figure, clause 1.4).

If the parties change or supplement individual provisions of the selected terms of delivery (Incoterms), then all changed (added) conditions must be set out in detail in the contract. For example, you can specify what costs the parties bear in accordance with the selected delivery basis. Additionally, stipulate who bears the costs of loading and unloading, packaging and labeling of the goods. Clarify at what point ownership rights and the risk of accidental loss of the goods are transferred to the buyer. Then, not the Incoterms rule will be taken into account, but the special provision of the contract (ICAC decision of October 18, 1999 No. 385 / 1998).

Error 6. The edition of Incoterms was not specified

Consequences. If the contract does not indicate which edition of Incoterms you are using (or the name of the delivery basis and edition is incorrectly indicated), a controversial situation may arise.

Firstly, some of the bases were replaced. For example, in Incoterms 2000 there were bases DAF, DES, DEC, DDU. In Incoterms 2010 they are not present, instead DAT and DAP appeared. Therefore, if you write in the contract, for example, “Incoterms 2010 DAF,” then the court will have a question: what basis did the parties have in mind—whether the DAF basis from Incoterms 2000, or one of the new DAT or DAP bases in Incoterms 2010.

Secondly, when referring to a specific basis of Incoterms 2010, it is worth clarifying how it is formulated in this particular edition. The fact is that some delivery bases have changed slightly. In particular, one change was made to the FOB (free on board) basis. In the Incoterms 2000 edition, the seller's obligation to transfer the goods was considered fulfilled (and the risk of loss or damage to the goods passed to the buyer) at the moment of crossing the ship's rails, and in the 2010 edition - at the moment the goods were placed on board the ship.

How to do it right. In the contract, be sure to write down which edition of Incoterms you use. If you are referring to any of the old bases, indicate the edition in which it is used and the base itself, for example, “Incoterms 2000 DAF”. Then, in the event of a dispute, the 2000 edition will apply.

Additional Information. In the terms of the letter of credit, it is necessary to indicate what mandatory details the documents submitted to the bank must contain (name of the document; who issued or certified the document; main points in the contents of the document; language of the document - Russian, English, etc.); number of copies of originals and copies of such documents.

Error 7. The contract did not contain a complete list of documents

As a rule, sellers refuse to deliver without a guarantee, and the buyer refuses to pay for goods without actual delivery. Therefore today the majority Russian companies conclude foreign trade contracts with a form of payment such as a letter of credit. It excludes non-compliance with the conditions of both the supplier and the buyer.

With the letter of credit form of payment, the bank, at the direction of the buyer, undertakes to transfer money to the seller when he presents certain documents to him. The list of such documents is agreed upon by the buyer and seller in advance. Thus, a letter of credit allows the buyer to avoid the risks associated with making an advance payment: the money will be transferred to the seller only after the actual delivery of the goods; if delivery does not take place, the money will be returned within a predetermined time frame; the delivered goods will be of appropriate quality, in the agreed volume and assortment.

• Service agreement: sample, typical mistakes

Consequences. If the contract contains an incomplete or incorrect list of documents submitted to the bank, there is a risk that the seller will receive payment even if the goods have defects. For example, if the list of documents does not include a quality certificate, the bank will not be able to request such a certificate from the seller and will transfer payment to him based on the remaining documents. You, of course, will be able to make a claim to the seller if the product is defective, but it will take more time. In addition, you will have to demand that the seller return the funds already transferred to him.

How to do it right. A foreign trade contract must contain full list and an exact description of the documents that the seller must submit to the bank in order to receive payment. In particular, these are documents confirming the actual delivery of goods, their quality, quantity and range. Then, if the seller cannot confirm, for example, the proper quality of the goods, he will not receive payment from the bank.

Information about the author and company

Nikolay Chudakov specializes in tax and civil law. Graduated from the Faculty of Law of the State University Higher School of Economics. He worked as editor-in-chief of such professional publications as “Arbitration Practice”, “Tax Disputes: Theory and Practice”, “Documents and Comments”. Author of the books “Algorithms for winning a tax dispute: how to win against the inspectorate on procedural grounds” and “10 precedents on rental disputes.”

YSS "System Lawyer"- the first legal reference system of practical explanations from judges. Official website - www.1jur.ru

IN last years The activities of Russian companies as independent subjects of foreign trade activities have significantly intensified. Every year the number of organizations doing business directly with foreign partners increases. The growing mutual interest of foreign and Russian companies is determined by the mutual benefit of such cooperation. Expansion of mutual contacts leads to agreements to conclude foreign trade transactions, taking the form of foreign trade agreements - contracts.

Foreign trade activities can be defined as “activities involving transactions in the field of foreign trade in goods, services, information and intellectual property.”

A foreign trade contract is the main commercial document that defines the relationship between the participants in a foreign trade transaction, their rights and obligations.

The term "contract" is widely used in domestic and global commercial practice. This fixes the commercial (compensatory) nature of the relationship between the parties. However, this term is absent in the Civil Code of the Russian Federation and in the Russian translations of a number of commercial documents. Instead of a contract, an “agreement” is used, as is customary in the internal economic practice of our country. An agreement can formalize relations between the parties of both a commercial and non-commercial nature, including agreements at the interstate level on trade, economic, scientific, technical, foreign policy and other issues. Agreements - legal form, which embodies the relations of the parties, containing rights and obligations when carrying out foreign economic activity. Nevertheless, Russian participants in foreign trade activities often use other names for this document: contract, transaction, agreement, in some cases protocol (for formalizing special contractual relations, for example, preliminary agreement on concluding a contract). Most often, instead of the term “contract”, “agreement” is used. In English, the most common language in world trade, an agreement of a commercial nature is referred to as a “contract”. The various names do not play any legal role; all these agreements are contracts aimed at creating mutual rights and obligations.

Modern legal systems, including legal system Russia, provide participants in foreign economic activity with ample opportunities to determine their rights and obligations2. The parties themselves determine the structure of the agreement, its content, etc. It is the agreement (contract), as a legal document, that arbitration bodies first of all turn to when a dispute arises between the parties. Therefore, concluded contracts must include detailed conditions to establish mutual rights and obligations that determine possible actions and consequences of such actions. If this does not happen, arbitration bodies are forced to turn to legislative acts.

Despite the freedom of contract established in the civil legislation of Russia and international legal acts, when drawing up a contract it is necessary to take into account documents regulating relations related to its implementation (Table 13.1).

The main features of a foreign trade contract are:

• o different nationalities of the contracting parties;
• o establishing mutual rights and obligations of the parties;
• o focus on organizing international trade in goods, services, information, and results of intellectual activity;
• o registration in the manner established by law (international treaty, custom or agreement of the parties);
• o making payments in foreign currency;
• o application of international law or the law of any state chosen by the parties;
• o consideration of possible disputes in an international court (arbitration) chosen by the parties.

Table 13.1.

UN Convention on Contracts for the International Sale of Goods (Vienna Convention 1980) applies to contracts for the sale of goods between parties whose places of business are located in different countries. The Convention does not apply to the sale of goods purchased for personal, family or household use.

Contracts for the supply of goods to be manufactured or produced are considered contracts of sale unless the party ordering the goods undertakes to supply a substantial portion of the materials necessary for the manufacture or production of such goods. The Convention does not apply to contracts in which the obligations of the party supplying the goods consist primarily of the performance of work or the provision of other services. The Vienna Convention regulates the following issues:

• o conclusion of an agreement;
• o obligations of the seller (delivery of goods and transfer of documents, compliance of goods and rights of third parties, means legal protection in case of violation of the contract by the seller);
• o obligations of the buyer (payment of price, acceptance of delivery, remedies in case of breach of contract by the buyer);
• o transfer of risk;
• o general obligations of the seller and buyer (contracts for the supply of goods in separate batches, losses, interest, exemption from liability, consequences of termination of the contract, preservation of the goods).

The UN Vienna Convention does not require that a contract of sale be concluded or evidenced in writing. It can be proven by any means, including testimony.

Principles of international commercial contracts(UNIDROIT Principles) developed by the International Institute for the Unification of Private Law (UNIDROIT) in 1994. The principles are advisory in nature. The document proposes rules intended for use throughout the world, regardless of government structure, economic system and legal traditions in accordance with the principles of reasonableness, good faith and fair dealing.

As a rule, in the process of working on a contract, the parties sign several documents, depending on the degree of elaboration of the issues reflected in the contract. Protocol of intent - a document confirming the parties’ intentions to engage in a specific project and their acceptance of certain obligations. Protocol - the desire of the parties to maintain freedom with respect to certain obligations or to fix their obligations on certain issues

Framework Agreement - a document defining a fundamental agreement between the parties on the forms and conditions of cooperation, which, after clarifications and additions, are reflected in the contract. Classification foreign trade contracts shown in Fig. 13.1.

Rice. 13.1.

Depending on the nature of the supply distinguish:

• o a contract with a one-time supply of goods, after which the legal relations between the parties to the transaction are terminated;
• o a contract with a periodic regular delivery of goods from the seller to the buyer within a certain period;
• o long-term supply agreements.

Depending on the object of the transaction distinguish:

• o contracts for the purchase and sale of goods in tangible form;
• o contracts for the purchase and sale of services (intermediary, futures, transport, consulting);
• o contracts for the purchase and sale of results creative activity(sale of licenses, usually accompanying the export of equipment and technology).

Depending on the forms of payment distinguish:

• o contracts with payment in cash provide for settlements in a certain currency using the forms of payment stipulated in the contract (collection, letter of credit, check, bill) and payment methods (cash payment, advance payment, payment on credit);
• o contracts with payment in commodity form;
• o contracts with mixed payment.

Depending on the direction of movement of the transaction object distinguish:

• o export;
• o imported.

The contract governing one transaction is one-time. If many transactions will take place within the framework of the concluded contract, it will be a framework one. At its core, a framework contract is intended, first of all, to provide the buyer with a stable supply of goods, and for the seller, a portfolio of orders over a certain period of time. A framework contract is concluded for a long period of time, with its text fixing the main issues of the relationship between the parties, which are usually not subject to change during the period of validity of obligations under the contract. The remaining conditions relating to specific supplies are agreed upon by the parties in applications, orders and other similar documents signed during the implementation of the contract and which are, in fact, contracts for each supply (one-time contracts).

A framework contract is a contract in which at least one of the essential conditions is not defined, and all essential conditions are determined for each delivery separately.

To give a contract the status of a legal document, when signing a contract, counterparties must comply with the requirements of national legislation regarding the form and procedure for concluding a contract. Russian legislation stipulates that foreign economic transactions must be concluded in writing. Failure to comply with the simple written form of a foreign economic transaction entails the invalidity of the transaction (Article 162, Part 1 of the Civil Code of the Russian Federation). The contract must necessarily reflect the subject of the contract. The contract must be signed by the appropriate persons:

• o a manager acting on the basis of the Charter;
• o a person acting on the basis of a power of attorney (indicate the number of the power of attorney, the date of issue, and by whom it was issued).

Copies of all organizational and legal documents confirming the authority of the manager are attached to the contract. If the contract contains a reference to annexes, addenda, specifications, protocols, etc. and it is stated that they are an integral part of the contract, these documents must also be attached. The wording must be unambiguous and not subject to ambiguity, and the various clauses of the contract must not contradict each other. The signatures are sealed by the exporter-importer and the foreign counterparty. If the bank issues a guarantee in favor of the importer, the text of the contract should indicate that the law applies Russian Federation. The contract usually makes reference to the Vienna Convention. The contract should specify at what point ownership passes from the seller to the buyer.

Terms of foreign trade contract include articles agreed upon by the parties and recorded in the document, reflecting the mutual rights and obligations of the counterparties.

The terms of foreign trade contracts can be divided into universal - clauses present in any contract (Table 13.2), and individual, inherent in a specific type of contract.

Table 13.2. Universal conditions of foreign trade contracts

Article title
Preamble	Full official names of the seller and buyer. Organizational and legal form. Full legal address of the parties. Where, by whom and when the parties are registered. Bank details of the parties to the contract. Contract number
Force Majeure		Grounds for exemption from liability and consequences
Settlement of disputes		Deadlines for filing claims. When resolving disputes, the parties are guided by the provisions of the Vienna Convention of 1980.
Contract duration		Validity period (from the moment of signing until the fulfillment of all obligations under the contract). Date of completion of obligations under the contract
Responsibility of the parties		Penalty (penalties, fines, compensation for losses). Sanctions for improper fulfillment of obligations of the parties
Applicable right		Law to be applied. The law of the country with which the contract is most closely related (in sales transactions, the law of the seller’s country is applied)
Arbitration clause		Arbitration courts. Arbitration courts
Other conditions		The annexes are an integral part of the contract. Attitude towards agreements. Coming into force and ending. Contract language. Authentic text. Additional agreements can be reached via mail and fax
Date and place signing contract		Signatures of the parties. Date and place (city) of signing the contract. Stamp of the exporter-importer and foreign counterparty

A foreign trade agreement (contract) is a civil document that defines the terms of a foreign trade transaction. In the Civil Code of the Russian Federation, Art. 420, a contract is an agreement between two or more persons to establish, change or terminate civil rights and obligations. The rules on bilateral and multilateral transactions apply to contracts. General provisions on obligations apply to obligations arising from an agreement, unless otherwise provided by the rules of Chapter 27 of the Civil Code of the Russian Federation and the rules on certain types of agreements contained in the Civil Code of the Russian Federation.

Art. 153 of the Civil Code of the Russian Federation, transactions are recognized as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.

When entering into a contractual relationship, the parties determine their rights and obligations, the totality of which constitutes the content of the agreement. By virtue of an obligation arising from a contract, one person is obliged to perform a certain action in favor of another person, and this person accordingly has the right to demand the fulfillment of obligations.

The basis of the legal regulation of contractual relations is the principle of freedom of contract. Persons are free to establish their rights and obligations on the basis of an agreement and to determine any terms of the agreement that do not contradict the law. Civil rights may be limited on the basis federal law and only to the extent necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, ensuring the defense of the country and the security of the state.

All of the above fully applies to foreign trade agreements, with the exception of cases when the content of the relevant terms of the agreement is directly prescribed by law, other legal acts or international agreements. It should be noted that the introduction of a system of currency control over export-import transactions, as well as significant penalties for violating the terms of currency legislation, forced Russian participants in foreign trade activities to take a more careful approach to determining the terms of contracts and pay more attention to collecting information about foreign counterparties.

A foreign trade agreement is considered concluded if the parties reach an agreement on all essential terms. Essential conditions include: subject of the agreement; conditions directly named in an international treaty, law or other act as essential for a given type of agreement; the conditions under which an agreement must be reached by one of the parties.

Regarding the preparation and execution of international sales contracts, the United Nations Convention on Contracts for International Sales and Purchases is in force, concluded in Vienna on April 11, 1980 (Vienna Convention).

When preparing a foreign economic agreement, it is necessary to take into account the peculiarities of Russian legislation in the field of civil, currency, tax, customs and other legal relations. When Russia joined the Vienna Convention in September 1991, a condition was stipulated that oral contracts would not apply in trade with Russian participants.

In accordance with Russian legislation, it is prohibited to include tax clauses in contracts, in accordance with which a foreign legal or individual assumes the obligation to pay taxes of other taxpayers.

The foreign trade agreement should stipulate in what language this document is drawn up, in what language correspondence on it will be conducted, etc. If there is no special instruction, then correspondence is conducted in the language of the party from whom the proposal to conclude the transaction was received.

1. Unified number

A foreign trade contract may have a unified number consisting of three groups of characters formed as follows:

BB/ХХХХХХХХ/ХХХХХ or ЦЦЦ/ХХХХХХХХ/ХХХХХ

The first group of characters - two letters or three numbers correspond to the code of the buyer's (seller's) country according to the Russian classifier of countries of the world, used for customs clearance purposes.

The second group - eight characters indicate the code of the buyer's (seller's) organization according to the All-Russian Classifier of Enterprises and Organizations (OKPO).

The third group of characters - five digits, represent the serial number of the document at the level of the buyer (seller) organization.

2. Date of conclusion of the contract

The date of conclusion of the agreement is the date of its signing by the last party. If the text of the agreement does not explicitly indicate the date of its entry into force, then such a date is considered to be the date of conclusion of the agreement.

3. Place of signing the agreement

The place where an agreement is signed is important for the legal regulation of foreign trade activities, and in certain circumstances this fact may acquire legal significance. The place where the agreement is signed determines the form of the transaction, the legal capacity and capacity of the persons who made the transaction. If the text of the agreement does not indicate the law of which country is applied when considering the dispute, then this will be determined based on the place where the agreement was signed.

4. Subject of the agreement

This section of the contract formulates the subject - an action or set of actions that determine the type and nature of the transaction being concluded.

The same paragraph indicates the object of the contract - the product, its range, size, completeness, country of origin, other data necessary to describe the product, including references to national and (or) international standards, performance of specific work or provision of services.

If goods of different qualities or assortment are supplied, they are listed in the specification attached to the contract and which is an integral part of it.

They also indicate the name of the container or packaging of the goods according to the international classifier, description and requirements for cargo labeling.

When determining the quantity of goods, the contract specifies the unit of measurement and the procedure for establishing the quantity (a firmly fixed figure or within established limits).

The issue of including containers and packaging in the quantity of goods supplied is also discussed; in accordance with this, gross and net weights are determined.

When determining the quality of a product, the contract establishes a set of properties that determine the suitability of the product for its intended use. The quality of a product can be determined by a standard; technical specifications containing detailed technical characteristics of the product, a description of the materials from which it is made, rules and methods of inspection and testing; according to specification; according to the model; according to preliminary inspection; content of individual substances, etc. Usually the product is accompanied by a quality certificate issued by the manufacturer, a certificate of origin.

5. Terms of delivery

This section fixes the basic delivery conditions, determines the delivery date and timing, the batch delivery schedule, and the procedure for delivery and acceptance of goods in terms of quantity and quality.

Basic terms of delivery - conditions that determine the responsibilities of the seller and buyer for the delivery of goods, the moment the risk of accidental loss or damage to the goods transfers from the seller to the buyer.

The distribution of risks, costs and responsibilities between the seller and the buyer is based on the international trade conditions "Incoterms" (Incoterms, International Commercial Terms), developed by the International Chamber of Commerce (ICC), used in international trade practice. The first edition of Incoterms was published in 1936, the latest was published in 2000 and was called Incoterms 2000.

The use of INCOTERMS when concluding foreign trade contracts is characterized by the following features:

from a legal point of view, this document is advisory in nature, therefore the parties to the contract using its terms must make a reference to this document;

the uniform terms of delivery contained in INCOTERMS are general character, therefore, in the relevant articles of the contract, the parties must clarify the obligations of the seller and buyer for the delivery of goods;

in contracts, the parties can agree on the use of INCOTERMS earlier versions than the latest edition of 2000 (1936, 1953, 1967, 1976, 1980, 1990), which is stipulated in the contract;

Due to the widespread use of INCOTERMS in the world, when preparing customs documents, the condition in accordance with INCOTERMS is indicated in the column “Delivery conditions”.

Based on the terms of INCOTERMS, the distribution of costs for the delivery of goods between the seller and the buyer is fixed. These costs can amount to up to 50% of the product price. Delivery costs include: preparation for shipment, loading into a vehicle, transportation, transshipment, cargo insurance during transportation, storage of goods in transit, customs duties, etc. In addition, INCOTERMS determine the moment of transfer from the seller to the buyer of the risks of accidental loss and damage goods.

In total, INCOTERMS contains 13 types of basic terms of delivery, which provide for various combinations of costs and risks of the seller and buyer, and are also classified depending on the methods of transportation. Let's briefly consider these conditions.

The first group is E terms (E-terms) - the seller provides the goods to the buyer directly on his premises:

EXW - ExWorks (named point) - Ex-factory (name of place).

In accordance with this condition, the seller is obliged to make goods that meet the requirements of the contract available to the buyer at his factory or warehouse within the time period stipulated by the contract. The buyer bears all costs and risks (including loading at the factory) of transporting the goods from the seller's factory or warehouse to the destination, as well as for customs clearance of the goods for export.

The second group - conditions F (F-terms) - the seller undertakes to place the goods at the disposal of the carrier, which is provided by the buyer:

FCA – Free Carrier (named place) – Free carrier (name of place).

The term “carrier” means any company with which an agreement has been concluded for the carriage of goods by railway, by road, by sea, etc., including multimodal transport.

The seller's obligations under this condition are to deliver the customs-cleared goods to the specified location to the carrier (or the buyer's forwarding agent). The risk of loss or damage to the goods passes from the seller to the buyer upon transfer of the goods to the carrier (forwarder).

FAS – Free Alongside Ship (named port of shipment) – Free along the side of the ship (name of the port of shipment).

The seller delivers when the goods are placed alongside the ship or on lighters at the named port of shipment. From this moment on, the risk of loss and damage to the goods is borne by the buyer. The seller is responsible for clearing the goods through customs for export. This condition applies when transporting by sea or inland waterway.

FOB – Free On Board (named port of shipment) – Free Board (name of the port of shipment).

The seller delivers when the goods pass the ship's rail at the named port of shipment. From this point on, the buyer bears all risks of loss and damage. The seller is responsible for clearing the goods through customs for export. Applicable only for transport by sea or inland waterway. The contract for the carriage of goods from the named port of shipment is concluded by the buyer at his own expense.

The third group - conditions C (C-terms) - the seller undertakes to enter into a contract of carriage, but without taking on the risk of accidental loss or damage to the goods or any additional costs after loading the goods:

CFR – Cost and Freight (named port of destination) – Cost and freight (name of destination port).

The seller completes delivery when the goods pass the ship's rail at the port of shipment. The seller must pay the costs and freight necessary to bring the goods to the port of destination. The costs of customs clearance of goods for export are borne by the seller. The risk of loss and damage and additional costs once the goods are shipped pass to the buyer.

CIF – Cost, Insurance and Freight (named port of destination) – Cost, insurance and freight (name of port of destination).

The seller completes delivery when the goods pass the ship's rail at the port of shipment. The seller must pay the costs and freight necessary to bring the goods to the port of destination. The risk of loss and damage and additional costs once the goods are shipped pass to the buyer. The seller is obliged to purchase marine insurance in favor of the buyer against the risk of loss and damage to the goods during transportation, i.e. the seller is obliged to conclude an insurance contract and pay insurance premiums. The costs of customs clearance of goods for export are borne by the seller.

CPT – Carriage Paid to (named point of destination) – Freight/Carriage paid to (name of destination).

The seller delivers the goods to the carrier named by him and pays the costs associated with transportation to the specified destination. The buyer assumes all risks of loss and damage to the goods, as well as other expenses after the goods are handed over to the carrier. If transportation is carried out by several carriers, then the transfer of risk will occur when the goods are transferred to the first of them. Customs clearance of goods for export is carried out by the seller. This condition is used when transporting goods by any type of transport, including multimodal transport.

CIP – Carriage and Insurance Paid to (named point of destination) – Freight/Carriage and insurance paid to (name of destination).

The seller delivers the goods to the carrier named by him and pays the costs associated with transportation to the specified destination. The buyer assumes all risks of loss and damage to the goods, as well as other expenses after the goods are handed over to the carrier. If transportation is carried out by several carriers, then the transfer of risk will occur when the goods are transferred to the first of them. Customs clearance of goods for export is carried out by the seller. The seller is obliged to provide insurance in favor of the buyer against the risk of loss and damage to the goods during transportation, i.e. the seller is obliged to conclude an insurance contract and pay insurance premiums. This condition is used when transporting goods by any type of transport, including multimodal transport.

The fourth group of conditions - conditions D (D-terms) - the seller bears all costs and assumes risks until the goods are delivered to their destination.

DAF – Delivered at Frontier (...named place) – Delivery to the border (name of the place of delivery).

The seller has delivered when the goods, unloaded and cleared for export, arrive in a vehicle at the disposal of the buyer at a named place or point at the border before the goods enter the customs border of the adjacent country (not cleared for import). Border – any border, including the border of the country of export. Therefore, the point or place is clearly indicated. The seller bears the risk until delivery. This condition applies if transportation is carried out by any type of transport to the land border.

DES – Delivered Ex Ship (...named port of destination) – Delivery from the vessel (name of the port of destination).

The seller makes delivery when the goods, not cleared for import, are made available to the buyer on board the ship at the named port of destination. The seller bears all risks until unloading. This condition applies only when transported by sea or inland water transport or in multimodal transport, when the goods arrive at the port of destination on a ship.

DEQ – Delivered Ex Quay (...named port of destination) – Delivery from the pier (name of the port of destination).

The seller has fulfilled his obligation to deliver when the goods, cleared for import, are placed at the disposal of the buyer on the quay at the named port of destination. The seller bears all costs of transporting and unloading the goods at the pier. This condition applies when transporting goods by sea or inland water transport and in multimodal transport, when the goods are unloaded from a ship to a pier at the port of destination.

DDU – Delivered Duty Unpaid (...named place of destination) – Delivery without payment of duty (name of destination).

The seller provides the goods not cleared for import and unloaded from the arriving means of transport at the named place of destination. The seller is obliged to bear all costs and risks associated with transporting the goods to this place, with the exception of costs for customs clearance, customs payments, etc. The buyer is responsible for paying such costs, as well as other costs and risks associated with this that it failed to clear customs for import in a timely manner. Risks and costs for unloading and reloading goods depend on who controls the selected delivery location. This condition may apply regardless of the type of transport.

DDP - Delivered Duty Paid (...named place of destination) - Delivery with payment of duty (name of destination).

The seller provides the goods cleared for import and unloaded from the arriving means of transport at the named place of destination. The seller is obliged to bear all costs and risks associated with transporting the goods to this place, including the costs of customs clearance, customs payments, etc. This condition can be applied regardless of the type of transport.

Delivery dates and dates, delivery schedule. The term refers to the moment when the seller is obliged to transfer the goods into the ownership of the buyer. The goods can be delivered either at once in full or in parts. The delivery period is established by defining a calendar date or period during which delivery must be made. In addition, it is indicated which date is considered the delivery date - the date of transfer of the goods to the buyer, for example: the date of the transport document (bill of lading, invoice, etc.), the date of the forwarder's receipt of acceptance of the cargo, the date of signing the acceptance certificate by the commission, etc.

The procedure for delivery and acceptance of goods. It is necessary to clearly formulate the procedure for accepting goods in terms of quantity and quality: type of delivery and acceptance, place of actual delivery and acceptance, period, method of quality control, method of accepting goods for quality, method of determining the quantity and quality of supplied goods (sampling or continuous inspection). The goods delivered are accepted at the place at which title and risk of loss or damage passes from the seller to the buyer. For example, when using the EXW condition, acceptance is carried out at the seller’s warehouse, under FOB condition - at the port of shipment.

By type, delivery and acceptance can be preliminary - it involves inspecting the goods from the seller to establish compliance of quantity and quality with the terms of the contract, establishing the correctness of packaging and labeling; final – the actual completion of the delivery at the specified location and on time is verified.

There are two main ways to determine the quantity of goods when it is expressed in weight units: by the shipped weight, established at the point of departure and indicated by the carrier in the transport document (bill of lading, air waybill, railway waybill, etc.); according to the unloaded weight established at the destination in the importer's country. Inspection is carried out by weighing at the time of unloading by persons acting under the authority granted to them by the authorities and chambers of commerce. The results are recorded in the relevant documents.

Acceptance of goods for quality is carried out on the basis of a document confirming the compliance of the quality of the delivered goods with the terms of the contract, as well as checking the quality of the actually delivered goods at the place of acceptance. The quality of the actually delivered goods is determined by analysis, comparison of previously selected samples, inspection, inspection and testing.

The contract determines who will carry out the acceptance - the parties or their representatives jointly, a disinterested monitoring organization appointed by agreement of the parties, etc.

6. Product price and total contract amount

This section indicates the unit price and the total contract amount. When setting a price, the unit of measurement, the price basis, the currency of the price, the method of fixing the price, and the procedure for determining the price level are fixed.

The price basis is determined by the basic delivery condition selected in the contract.

The price established in the contract can be determined in the currency of the country of the exporter or importer, in the currency of settlement or in another currency. The contract specifies the name and currency code of the price, in accordance with the Currency Classifier.

Depending on the method of fixing prices, there are firm, floating, and sliding prices. The fixed price is set at the moment of signing the contract and is not subject to change during its validity period. The price with subsequent fixation is not directly indicated in the contract, but the method of setting the price in the future on a certain date is precisely described, for example, the price is set according to the level of stock exchange quotations on the delivery date or payment date. In contracts for the supply of goods with a long production period (marine vessels, industrial equipment), sliding prices are used, which are calculated taking into account changes in the costs of manufacturing the goods during the contract period. In contracts for which the delivery of goods is carried out in batches, the price can be determined during the execution of the contract, for example, revised for each delivery batch.

When determining the price level, they are guided by calculated and published prices. Published prices are reported in special sources (reference prices, stock quotes, auction prices, bid prices of large suppliers, etc.). Estimated prices are used in contracts for the supply of specific goods, for example, custom-made equipment.

7. Terms of payment (terms of settlement)

The main terms of payment include: currency of payment, terms of payment, method of payment, form of payment.

In addition to the price currency, the contract specifies the payment currency, that is, the currency in which payments under the contract will be made, and indicates the name of the currency and currency code in accordance with the Currency Classifier. It is possible to pay for goods in different currencies: part in one currency, part in another.

If the payment currency does not coincide with the price currency, then the agreement specifies the procedure for converting one currency into another. Typically, recalculation is made at the exchange rate of one currency to another in force in the country of the paying party. This procedure is called a currency clause.

An important point is the establishment of payment deadlines (as well as guarantees of compliance with these deadlines). The contract defines either calendar dates or the period during which payment must be made, as well as the procedure and timing for granting deferred payment (if provided).

This section also indicates the documents transferred by the seller to the buyer, confirming the fact of shipment, cost, quality, nomenclature, quantity of goods, etc.

Particular attention should be paid to the choice of payment method and form of payment. The following payment methods are available:

cash payment, that is, the transfer of funds before or after the exporter transfers documents of title or the goods themselves to the buyer;

advance payment – ​​payment before the goods are transferred to the buyer’s disposal or before the start of the contract (commercial loan to the seller);

deferred payment – ​​payment after the goods are transferred to the buyer’s disposal after a certain period of time (commercial loan to the buyer).

In international trade, the following forms of payment are used: transfer, collection, letter of credit, checks.

International bank transfers are the most common form of payment. With this form of payment, the payer's bank, for a fee, on the payer's instructions, transfers the amount of funds specified in the transfer order to the recipient's (beneficiary's) bank in favor of the specified recipient (beneficiary). When making payments in the specified form, they are guided by international documents: Model Law “On International Bank Transfers”, approved by the UN Commission on International Trade Law in 1992, ICC Guidelines for the International Interbank Transfer of Funds and Compensations of 1990.

Letter of Credit. The importer's bank undertakes, at the direction of the importer and at his expense, to make a payment to the exporter in the amount of the cost of the goods delivered against the exporter's presentation of the documents specified in the letter of credit. Letters of credit can be covered or uncovered, confirmed or unconfirmed; revocable and irrevocable, divisible and indivisible; transferable (transferable), as well as renewable (revolving).

Collection. The exporter transmits an order to his bank to receive a certain amount of payment from the importer against presentation of the relevant documents, as well as bills, checks and other payable documents.

8. Force majeure

As a rule, a foreign trade agreement contains a force majeure clause, according to which the deadline for the execution of the agreement is postponed or the party is generally released from full or partial fulfillment of obligations in the event that, after the entry into force of the agreement, circumstances beyond the control of the parties arise that impede the execution of the agreement. There are also established international customs on this issue, which are published by the International Chamber of Commerce.

9. Dispute resolution procedure

This section defines the procedure for presenting and considering claims unresolved by the parties, the procedure for payments for claims, and the procedure for considering controversial issues in arbitration. It is necessary to clearly indicate in the contract the law of which country will govern these relations.

10. Sanctions (liability)

In this paragraph, the parties establish responsibility for improper fulfillment of obligations, including late payment or delivery, as well as delivery of goods of inadequate quality or quantity.

11. Procedure for changing or canceling the contract

In this section, the parties stipulate the date of entry into force of the agreement, its validity period, the procedure for introducing amendments and additions to the agreement, and other conditions.

12. Details of the parties, signatures, seals

The agreement specifies the full details of the parties: legal and postal address, bank details; positions, names and signatures of the persons who entered into the agreement: The agreement is sealed.

To conduct a foreign trade transaction in accordance with the legislation of the Russian Federation, the importer or exporter must prepare the appropriate documents, obtain the necessary permits, and fulfill the established requirements.

All goods and vehicles transported across the customs border are subject to customs clearance and customs control in the manner and under the conditions provided for by the Customs Code of the Russian Federation. Payments in foreign currency and other currency transactions under foreign trade import transactions are carried out in the manner prescribed by the currency legislation of the Russian Federation and are subject to currency control.

The basis for recording transactions under a foreign trade agreement in accounting are properly executed documents confirming the fact of transactions; such documents include commercial documents received from suppliers, as well as documents provided for by the currency and customs legislation of the Russian Federation.

Commercial documents include:

invoices (commercial accounts) of suppliers;

railway waybills, air waybills, bills of lading and other documents confirming the movement of goods;

acceptance certificates confirming the receipt of cargo at ports and warehouses;

commercial acts drawn up in cases of shortages, damage, etc.;

acceptance acts of forwarders, etc.;

During customs clearance, documents are drawn up according to established forms, the main ones being:

cargo customs declarations (CCD);

declaration of customs value (DTV), etc.;

Documents drawn up in accordance with the established procedure for currency control in authorized banks and the procedure for making payments on customer accounts:

Transaction passport;

Information on currency transactions;

Payment documents (transfer order, letter of credit, etc.).

Foreign trade contracts- these are trade agreements between two or more commercial entities on the international market, created for the purpose of establishing, changing and terminating activities in the trade sphere. The entities that sign such contracts are under the jurisdiction of individual states. Foreign trade supplies is drawn up in accordance with the unified rules of legal documentation and contains conditions that involve trade exchange of certain types of goods or services.

The parties to a foreign trade contract enter into an agreement, according to which the exporting party undertakes the obligation to deliver a certain product within a clearly specified time frame, and the exporting party is obliged to accept the goods and pay the agreed amount for it.

Forms of foreign economic activity

• Trade barter.
• Joint business activities.
• Rendering various types services.
• Cooperation in the field of science and technology.
• Joint implementation of operations related to the banking financial sector.

All types of the above operations can be carried out only by signing an appropriate contract, the terms of which require this activity.

The existence of many forms of foreign trade activity presupposes the existence of a system of unified legal norms that would regulate all aspects of social relationships in this segment. Among such legal norms are the set of rules approved by the Vienna Convention of the United Nations in 1980.

When signing foreign trade transactions, all payments are made in foreign currency, because the goods cross the state border, but this does not apply to commodity exchange transactions.

Terms of foreign trade contract

When concluding a contract, its parties must decide on the priority of the law of their countries when concluding the contract. It is also necessary to stipulate the rights and obligations of each party.

If we're talking about about the purchase and sale contract, then a necessary condition when it is compiled, there is a transfer of ownership from the entity selling the product to the entity that buys it. This condition is distinctive feature purchase and sale contract from any other type of transaction.

The rules of Vienna Convection began to operate in Russia in the fall of 1991. This convention pays special attention to the conditions for drawing up purchase and sale agreements that are signed between entities of different countries. This Convention regulates the legal activities of the parties, regardless of what countries they are in and what system of legislation operates there. A purchase and sale agreement may be concluded between legal entities, whose operating units are located in different countries.

The content and structure of a foreign trade agreement depends on the subject of the agreement. Various trade operations involve the conclusion of a foreign trade contract in different forms. But there are some General requirements on the conclusion of contracts, which the parties are obliged to take into account, regardless of the specifics of such contracts. Only if these requirements are met will the contract be considered valid and enter into legal force.

When signing international contracts, it is almost impossible to stipulate all possible contingencies, so the parties make do with only general rules.

Types of foreign trade contracts

Due to the fact that there are a large number of types of foreign trade contracts, it is appropriate to classify them according to certain criteria. Namely:

1) Depending on delivery time:

• One-time.

One-time deliveries are also classified depending on the time during which the delivery will be made. These terms, in turn, depend on what type of goods need to be delivered. If the product is a raw material, then the delivery time is as short as possible. Long-term deliveries can be carried out over several years (from 3 to 5 or more). There are also deliveries at periodic intervals. Contracts for such deliveries are usually signed for a year and provide for regular transportation of goods. Long-term deliveries occur over several years (5 to 10).

• Urgent.

These are those deliveries that need to be completed during the current period in the near future. Such deliveries are characterized by the fact that the customer needs the goods of the foreign trade contract in the near future due to its lack of demand at the moment.

• Long-term

Long-term supply contracts are concluded when the subject of transportation is large volumes of industrial raw materials, Construction Materials, natural resources.

2) Depending on the payment method:

• Payment in cash (payment is made in accordance with the terms of payment in cash specified in the contract).
• Commodity form (payment is made using the commodity barter method).

3) Depending on the specifics of the execution of contractual agreements:

• Preliminary (the parties to the contract agree that in the future a contract will be concluded between them on terms that are agreed upon in advance).
• Special - such contracts are concluded for carrying out installation work, design, transportation of specific products, carrying out research activities, testing, exploration work.
• Framework contracts - such contracts have only General terms, which are subject to detailed discussion and change in the future; will be more specifically discussed during ongoing activities. Based on incomplete information about preliminary services, it is difficult to evaluate such contracts financially, since they have only a minimal percentage of information.
• Intentions - the customer’s desire to buy products without specific obligations is specified.

4) Depending on the item of sale:

• Purchase and sale of tangible goods.
• Purchase and sale of the fruits of intellectual activity.
• Purchase and sale of licenses.

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1. What type of contract is expected to be concluded.

That is, a contract for the supply of goods, provision of services, performance of work, transfer of software licenses, a mixed contract for goods and services, a distribution contract, a compensation agreement, Team work etc. The solution to this issue determines the mandatory details of the contract, document flow under the contract, additional costs and income under the contract, customs, tax and other consequences.

2. Will the contract be one-time (for the supply of one batch of goods, one-time performance of work or services, etc.) or a framework one.

3. Is it expected to conclude a specific contract with one foreign partner or a general (standard, basic) contract with different potential partners. From which countries are contract partners expected?

4. Is the foreign partner under the contract an independent contractor or an entity affiliated with you (a subsidiary, your offshore company, etc.).

A contract with “one’s own” foreign company actually transfers work under the contract to the level of compliance with formalities in the Russian Federation. For contracts with independent foreign partners, on the contrary, the commercial terms of the transaction and problems due to the difference in mentality of the partners are of primary importance. However, all this is also influenced by the requirements of currency, customs, and tax legislation of the Russian Federation.

5. Whether a particular potential foreign partner is a fraudster.

If it turns out that the partner is a fraudster, and there are many of them in the field of foreign economic activity, then all the work under the contract with him will not make sense. To check, you can evaluate your partner’s behavior and correspondence with him for signs of fraud, request registration information about him from information agencies (see, for example, www.dnb.ru), Chamber of Commerce and Industry, information from exhibitions, visit his office or enterprise, etc. Sometimes this problem is identified after repeated negotiations, so it must be taken into account after the conclusion of the contract.

6. Are there any proposals for a draft contract from a foreign partner (partners) and your attitude towards them.

That is, do you agree with the partner’s terms, possible objections, conditions that are important to you. These terms may also be contained in correspondence with your partner. This is one of the most time-consuming parts of working on a contract.

7. What will be the languages ​​of the contract and the language of correspondence under the contract.

8. Name of goods, works, services, licenses, activities under the contract.

8.1. Are goods, services, works, intellectual property (IP) objects under the contract subject to any prohibitions and restrictions in the Russian Federation?

This may be mandatory certification of goods, licenses and quotas for import into the Russian Federation or export of goods from the Russian Federation, etc.

8.2. Are there any benefits in the Russian Federation for goods, services, works, or IP objects under a contract and what conditions must be met to receive them?

9. What amounts will be “at risk” under the contract.

In other words, this is the approximate total amount of the contract and the amount of possible losses and income / profit. Commercial cooperation for different amounts has different patterns that cannot be ignored in the contract.

10. What will be service organizations in connection with the contract - will there be a broker, forwarder, etc. Will the contract be related to other contracts for your foreign trade project.

For example, the transport terms of the contract must correspond to the contract for chartering a vessel, etc.

11. What tasks and goals are expected to be achieved under the contract.

For what purposes will my participation be required, what issues do you intend to resolve on your own?

12. Have (open) a foreign currency account in a bank and obtain document forms for foreign exchange transactions from the bank’s foreign exchange control department. As a rule, payments are made in euros and US dollars, for which the following documents are required:

Certificate of foreign exchange transactions

Certificate of supporting documents

Order (application) for the purchase of currency

Order (application) for currency transfer

If legal services are needed to resolve the above issues, see Legal development of foreign trade projects.

From a legal point of view, each type of foreign trade (commercial) contract has its own essential conditions, without the agreement of which the contract is considered unconcluded. In the narrow sense of the word, these essential conditions can be considered mandatory details of the contract. For example, under an ordinary contract for the sale and purchase of goods, international law establishes only two essential conditions: 1) the name of the goods and 2) the quantity of goods. It is assumed that the price of goods, if not specified in the contract, can be determined by the prices for similar goods charged under comparable circumstances.

However, in practice, foreign trade contracts have a number of additional mandatory details. For customs purposes, such details are the characteristics and description of goods, since they are used to determine the HS codes of goods, which serve as the legal basis for the collection of customs duties, the bases (basic conditions) of delivery according to Incoterms and the prices of goods, on the basis of which the customs value of goods is determined. For the purposes of currency legislation, regulatory authorities often consider the terms of delivery of goods, provision of services, performance of work, transfer of results of intellectual activity, as well as payment terms to be essential terms of contracts, since the law on currency regulation and exchange control (Article 19) refers to the obligation residents to ensure receipt of goods, services, works, results of operations or return of currency “within the time period established by the contract.”

In addition, the mandatory details of contracts include purely formal details: written form of the contract, names and addresses of the parties, currency details for payments, presence of signatures of representatives of the parties, seals of the Russian side (foreign partners often do not have a seal), date of the contract.

The usual requirements of banks, customs and tax authorities for foreign trade contracts can be considered unique mandatory details. For example, bank details for payments should be indicated not only in the final clause of the contract, but also in the payment clause. As a rule, a contract must have penalties, provisions on claims, have an economically reasonable purpose and procedure for execution, a place of signing, etc.

For control purposes in the Russian Federation, all these features are reflected in the Recommendations on the minimum requirements for mandatory details and the form of foreign trade contracts, sent by letter of the Central Bank of the Russian Federation dated July 15, 1996 No. 300. Although these Recommendations are not mandatory, their compliance allows us to minimize many problems with contracts in banks, customs, and tax authorities. However, the Recommendations should not be taken literally; some of their provisions are clearly outdated, for example, references to Incoterms-90, recommendations to indicate currency codes and product packaging codes in the contract.

Finally, if the parties agree to include any additional essential conditions in the contract, then such conditions with the status of “material” will also become mandatory conditions(details) of the relevant contract between these parties.

Structurally, foreign trade contracts usually consist of a preamble, which contains information about the parties to the contract and their representatives, and articles, divided into paragraphs, which set out the actual terms of the contract. The closing clause usually contains the contact details and bank details of the parties. Sometimes the preamble sets out the parties' statements about their reasons for entering into the contract. Individual large sections of the contract may be drawn up as annexes to the contract, in which case such annexes should not have their own date and place of signature, since they are considered integral parts of the contract.

The content of the contract is the conditions and algorithms for cooperation between the parties, supply of goods, provision of services, performance of work, transfer of licenses, payments, acceptance, claims, force majeure, arbitration, etc. The minimum recommended conditions are listed in the above-mentioned Recommendations of the Central Bank and Customs. Naturally, in foreign trade agreements for the provision of services, performance of work, transfer of licenses, some of these conditions are not used, but other conditions necessary for the corresponding type of contract are added. On the other hand, detailing all such conditions and including additional conditions in the contract can radically change the content of the “minimum” contract. Depending on your goals and objectives under the contract, the following sections may become separate large blocks of legal issues under the contract:

Algorithms for the supply of goods, provision of services, performance of work

Conditions on the quality of goods

Monetary and financial conditions

Conditions on the scope of rights under the license

Conditions for acceptance of goods, works, services

Terms of claims and liability

Guarantees of fulfillment of obligations

Warranty obligations of the seller, manufacturer

Documents and document flow under the contract

When transferring contracts from/to English language distortions inevitably arise to one degree or another due to the presence in languages ​​of so-called non-equivalent vocabulary that does not have direct correspondence in the target language, and due to other linguistic features, for example, inconsistent terminology, the presence of concepts that in one language are expressed in one word or phrase, and in another are described in several sentences, etc.

Preparing a contract simultaneously in two languages ​​differs significantly from first drafting it in one language and then translating it into another language. Advantages of a bilingual approach:

More high level equivalence of two contract texts by eliminating non-equivalent vocabulary and selecting established translation correspondences

Correct use of contract terminology Russian/English.

Detailing of concepts that are little known or incomprehensible to one of the parties to the contract

More high speed contract preparation

This procedure is not established by law. Some justification for the preparation of bilingual documents can be found in the order of the Ministry of Justice of the Russian Federation dated March 15, 2000 No. 91 “On approval Methodological recommendations on the performance of certain types of notarial acts by notaries of the Russian Federation,” which says:

"40. If, when performing a notarial act (certifying a transaction, certifying the accuracy of a copy, etc.), a translation into another language is simultaneously performed, then the translation and the original text can be placed on one page, separated by a vertical line in such a way that the original text is placed "on the left side, and the translation - on the right. The entire text of the document is translated, including the signature and seal. If the translation is made by a translator, his signature is placed under the translation. The certification inscription is stated under the texts of the document and the translation from it."

In practice, contract texts for different languages placed on one page, separated by a vertical line. The translator’s signature is not affixed, since it is considered that the parties, with their signatures, certify the authenticity and legal force of the contract in different languages, by virtue of such an agreement between them. As a rule, the contract specifies which text takes precedence in the event of discrepancies. Options are possible when both texts have equal legal force, or when one of the texts has only informational value. However, if such an “informational” text of the contract is Russian, then such a condition of the contract may lead to problems at the bank and at customs.

Strictly speaking, the types and number of problems that may arise under a foreign trade contract are not limited. However, the most serious and most common problems can be identified. From the point of view of the commercial relations of the parties, the most sensitive ones are usually financial losses or additional income caused by certain provisions of the contract. For details of these provisions, see the page

Of course, possible contractual problems with a foreign partner are not limited to financial consequences. There may be damage to reputation, lost time negotiating with scammers, unreasonable disagreements, misunderstandings, the need to change the contract, re-issue documents, etc.

On the other side, possible problems under contract in relations with the regulatory authorities of the Russian Federation are no less numerous, their lists can be found on the pages:

In each specific situation According to the foreign economic activity project, these problems and the likelihood of their occurrence are different. Therefore, it is important to decide in advance which issues in your contract will be most relevant and focus on them.

Based on the practice of foreign economic activity, there are certain methods for avoiding or resolving such problems under contracts, which are offered as part of the service for drawing up foreign economic activity contracts.

Often contracts are concluded at a meeting of representatives of the parties. In this case, it is advisable to indicate in the contract only one date of signing and at the same time the place of signing.

If a contract is concluded by mail, the contract is considered concluded at the moment the party that sent the offer (a contract signed on its part) receives its acceptance (a contract also signed by the other party). Acceptance must be complete and unconditional. Acceptance must be received within the period specified in the offer. Otherwise, disagreements arise about whether the contract was concluded, in what edition, etc.

The conclusion of foreign trade contracts with an electronic digital signature is not yet used in Russian foreign trade practice for a number of reasons. Instead, sending documents by e-mail in scanned form serves as a successful replacement for faxing. The legal justification for this practice can be considered paragraph 2 of Article 434 of the Civil Code of the Russian Federation, which states:

"2. An agreement in writing may be concluded by drawing up one document signed by the parties, as well as by exchanging documents through postal, telegraphic, teletype, telephone, electronic or other communications that make it possible to reliably establish that the document comes from a party to the agreement."

The key in this paragraph is the last phrase about reliably establishing that the document comes from the party to the contract. Therefore, it is advisable to indicate the electronic mail addresses of the parties in the contract.

It is also strongly recommended to conduct negotiations and correspondence regarding the conclusion of a contract with only one leading representative (manager) of the other party. Otherwise, references like “such and such a manager insisted on such and such a condition”, “you did not respond to our lawyer’s letter and thus agreed with him”, etc. inevitably arise, which makes it very difficult to reach agreements and conclude a contract.