《联合国国际货物销售合同公约》第6条的理解与适用

-中国公司诉越南公司贸易仲裁案

核心要点

在RCEP成员国商业主体开展跨境贸易活动时，交易各方应当对交易对手所在国家整体的法律环境、商业实践的成熟度、所属行业的惯常做法以及交易合同关键条款的起草等予以关注。对于国际货物买卖合同而言，对与货物验收有关的事项尤其应当予以关注，在交易合同中应当对货物质量标准、质量检验程序、质量问题索赔等作出明确的、具体的约定，准确处理当事人的自由缔约权与准据法规范之间的关系问题，更重要的是在货物验收过程中做好证据固定，以应对潜在的争议解决程序。

基本案情

本案申请人为一家从事生物科技领域内的饮料及相关食品生产的中国公司，被申请人是一家从事食品原材料生产和贸易的越南公司。2018年5月，申请人作为买方，与作为卖方的被申请人签订了一份《合同》，约定被申请人按照双方书面确认的样品标准，向申请人供应蜂蜜芦荟果粒。《合同》及附件对货物的标的、价款、质量、履行期限、包装、验收标准等作出了明确约定，并约定如发生任何争议的，应当提交上海国际仲裁中心仲裁。《合同》第11条特别约定，如果卖方在买方提出质量异议后15天内未答复的，则视为卖方接受买方的所有请求。《合同》签订后，申请人分两次支付《合同》项下全部货款，但被申请人供应的蜂蜜芦荟果粒经检验质量不符合合同约定标准且包装生锈，为不合格产品。申请人遂于2018年9月通过电子邮件将收货报告及货物检验报告发送给被申请人，其中收货报告对收货的数量、包装等进行了现场记录，通过现场检验，被申请人供应货物的外包装、喷码等均不符合合同约定标准；检测报告对货物内部进行了检验，通过检测，被申请人供应的货物可溶性固形物、PH值、总酸、果肉含量等均不符合《合同》约定标准。由于被申请人对申请人发送的报告一直未回复，申请人遂于2018年10月向被申请人发送律师函，对涉案货物的包装、品质不符合《合同》约定标准的事实进行了说明，并提出相应的索赔请求。投递记录显示被申请人已签收该律师函，但被申请人仍未予以答复。鉴于此，申请人向上海国际仲裁中心提起仲裁，要求被申请人退还货款并赔偿损失。

仲裁庭意见

仲裁庭经审理后归纳本案争议焦点为：（1）被申请人交付的货物是否存在质量问题；（2）申请人的质量异议及索赔主张是否具有法律依据和合同依据；（3）申请人的损失应如何认定。在对争议焦点进行分析之前，仲裁庭首先对本案的法律适用进行了明确。鉴于中、越两国均为《联合国国际货物销售合同公约》（以下称“《公约》”）缔约国，仲裁庭根据《公约》第一条的规定决定适用《公约》为本案准据法；考虑到货物交运目的地在中国，申请人营业地也在中国，仲裁庭确定《公约》未尽之事项应适用与《合同》存在最密切联系的中国法律。在此基础上，仲裁庭进一步对争议焦点作出如下分析：首先，根据申请人提交的收货报告及检验报告，仲裁庭经仔细比对其内容与《合同》约定后，认定被申请人交付的货物不符合《合同》约定的质量标准和包装标准。其次，虽然《公约》对卖方违反义务时买方的救济措施进行了规定，但《公约》第6条亦规定当事人可以在符合条件的情况下排除《公约》特定条款的适用，因此，《合同》第11条应视为双方当事人对货物质量问题引起的索赔救济进行了特别约定，该等约定并不违反《公约》第6条适用的限制性条件。在此基础上，仲裁庭认为被申请人未对申请人的主张进行任何回复的行为视为其已接受申请人提出的退还货款等请求，故申请人的该等请求有法律依据和合同依据。最后，根据《公约》第45.1条和第74条的规定，如果卖方不履行合同义务，买方可以要求卖方就因其违反合同而遭受的包括利润在内的损失进行赔偿。在分析了申请人提供的证据及其合理性之后，仲裁庭认为除全部货款之外，申请人为本案付出的保险费、海运费、税费、货运代理费属于申请人的合理损失。同时，按照本案适用的上海国际仲裁中心仲裁规则，被申请人应当承担申请人为本案付出的全部仲裁费。

仲裁裁决的跨境承认和执行

越南社会主义共和国最高人民法院公开的裁判文书显示，当事人根据上海国际仲裁中心在上述仲裁案件中作出的仲裁裁决向越南法院提出了承认和执行申请，当事人的承认和执行申请历经越南国内三级法院的审理，最终成功获得越南最高人民法院的承认和执行。

典型意义

本案是一起涉及“一带一路”国家的国际货物贸易纠纷，也是一起仲裁庭准确适用《公约》的典型案例。在本案中，仲裁庭首先需要考察《公约》第1条的规定，确定涉案合同争议从缔约主体角度是否应适用《公约》，进而根据交易性质来确定涉案合同所买卖的货物、买卖的方式是否在《公约》调整的范围内。在得出《公约》应适用于涉案合同的前提下，仲裁庭根据《公约》第6条判断当事人是否有效减损了《公约》的适用。就《公约》第6条的理解而言，该条允许当事人减损《公约》的部分规定，本案仲裁庭对该条款的规定进行了准确分析，即当适用于特定事项的合同条款与公约相关规定相抵触时，推定双方当事人意图就特定问题减损《公约》的规定，但并不影响《公约》的适用。这一解读准确地反映了《公约》的立法意图，即国际销售合同规则主要来自当事人意思自治，充分尊重了当事人意思自治在国际商务活动特别是国际销售中的核心地位。随着“一带一路”倡议的不断推进，沿线国家之间的经济交易格外频繁，法律冲突的解决和协调的重要性尤为凸显。从争议解决的角度看，“一带一路”经贸投资项目涉及的交易类型日趋丰富，引发的争议也愈发复杂，国际公约、条约等多边法律将会在更多案件中得到更具有针对性地适用。对于从事“一带一路”经贸投资交易的中国商事主体提供而言，应当进一步加强对于国际公约、条约和商事交易规则的熟悉与理解，在订约时制定对己方有利的条款，保护己方合法权利；对于争议解决法律服务机构而言，应当进一步加强对于国际公约、条约和商事交易规则的学习与研究，为商事主体正确适当地确定纠纷的法律适用，为妥善解决跨国经贸投资争议提供法律保障。

附录：

《联合国国际货物销售合同公约》第六条规定：双方当事人可以不适用本公约，或在第十二条的条件下，减损本公约的任何规定或改变其效力。第四十五条第一款规定：（１）如果卖方不履行他在合同和本公约中的任何义务，买方可以：（ａ）行使第四十六条至第五十二条所规定的权利；（ｂ）按照第七十四条至第七十七条的规定，要求损害赔偿。第七十四条规定：一方当事人违反合同应负的损害赔偿额，应与另一方当事人因他违反合同而遭受的包括利润在内的损失额相等。这种损害赔偿不得超过违反合同一方在订立合同时，依照他当时已知道或理应知道的事实和情况，对违反合同预料到或理应预料到的可能损失。

Typical cases of international trade dispute resolution (Fair Trade)

On the understanding and application of Article 6 of CISG

Editorial Note

On January 1, 2022, the Regional Comprehensive Economic Partnership (“RCEP”) officially came into effect. The regional trade and investment among the signatories to the RCEP are subject to the uniform regulation of a multilateral treaty. The free trade zone created by RCEP represents the world’s largest economic block with great potential. Including China, international trade and investment among the signatories will bloom, and the region’s financial cooperation may upgrade to a new level. As a significant player in the RCEP regional trade, China has become and maintained the largest trading partner and source of investment to most of the signatories to RCEP. The pace of Chinese companies participating in RCEP regional trade has been speeding up. It has become evident that the need for stable and predictable rules and dispute resolution services for international trade has soared. In response to the growing demands, the Fair Trade Division of the Shanghai Municipal Commission of Commerce and the Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Center) jointly launches the pro bono project featuring the typical cases of resolving the international trade dispute. This project is produced in both Chinese and English. The purpose of the project is to share SHIAC’s experience in handling international trade disputes and provide a practical reference to the players in the RCEP regional trade.

Key points

When commercial entities of RCEP member States carry out cross-border trade and investment activities, the parties concerned should pay attention to the overall legal environment of the country where the counterparty is located, the maturity of commercial practices, the usual practices of the industry they belong to, and the drafting of critical terms of the transaction contracts, especially those related to the acceptance of goods. The parties should make clear and specific contractual provisions on quality standards, quality inspection procedures, quality claims, etc., and properly deal with the relationship between the contractual terms of the parties and the applicable legal norms. More importantly, the parties should make their efforts to preserve the evidence during the acceptance of the goods to deal with potential disputes through dispute settlement procedures.

Background

The Claimant, in this case, is a Chinese company specializing in producing beverages and related food products in the biotechnology field. At the same time, the Respondent is a Vietnamese company specializing in producing and trading food raw materials. In May 2018, the Claimant, as the buyer, entered into a Sales Contract ("Contract") with the Respondent, as the seller, agreeing that the Respondent would supply the Claimant with honey aloe vera fruit capsules under the sample standards confirmed in writing by both parties. The parties have agreed on the subject matter, price, quality, performance period, packaging, and acceptance standards of the goods in the Contract and its annexes. The Contract also included an arbitration clause referring all disputes arising from or connected with the Contract to Shanghai International Arbitration Center for arbitration. It is worth noting that Article 11 of the Contract provides that if the seller does not reply within 15 days to the buyer's objection on quality, the seller would be deemed to have accepted all of the buyer's complaints and requests for remedy.

After the Contract was concluded, the Claimant fulfilled its duty to pay for all the goods under the Contract in two installments. Still, the honey aloe vera fruit capsules supplied by the Respondent were unqualified for they did not meet the standards agreed upon in the Contract, and the packaging needed to be better. The Claimant then sent the Respondent a Receipt Report and an Inspection Report of the goods via email in September 2018. The Receipt Report made on-site records of the quantity and packaging of the received goods, etc. Through the on-site inspection, the Claimant found the outer packaging and spray code of the goods supplied by the Respondent needed to meet the agreed standards in the Contract. In addition, the Inspection Report recorded that the soluble Solids, PH value, total acid, and pulp content of the goods provided by the Respondent did not meet the agreed standards in the Contract after examining the goods.Since the Respondent never replied to the two reports sent by the Claimant, the Claimant then sent a lawyer's letter to the Respondent in October 2018, explaining the fact that the packaging and quality of the goods in question were lack of conformity to the Contract and making corresponding claims for compensation. Although the delivery record showed that the Respondent had received the lawyer's letter sent by the Claimant, the Claimant has yet to receive a response from the Respondent on the dispute. Given this, the Claimant applied for arbitration with the Shanghai International Arbitration Center, demanding the Respondent refund the purchase price and compensate for the incurred losses.

The Arbitral Tribunal’s View

After the hearing, the arbitral tribunal concluded the issues of the case as follows:

Whether the goods delivered by the Respondent were of the quality agreed in the Contract.Whether the Claimant's quality objection and claims had legal and contractual basis.How the Claimant's losses should be identified.The arbitral tribunal first clarified the applicable law in this case. Since both China and Vietnam are Contracting States of the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980, "CISG"), the arbitral tribunal decided to apply CISG as the governing law of the case under the provisions of Article 1 thereof. Moreover, considering that the goods were delivered to China and the Claimant's place of business was also in China, the arbitral tribunal determined that the Chinese law, as the most closely connected law with the Contract, should apply to matters that were outside of's scope of CISG. On this basis, the arbitral tribunal further made the following analysis of the issues:Firstly, according to the Receipt Report and Inspection Report submitted by the Claimant, the arbitral tribunal, after carefully comparing their contents with the agreement in the Contract, found that the goods delivered by the Respondent did not meet the quality standards and packaging standards required in the Contract.Secondly, although CISG provides for the buyer's remedies in case of a breach of the seller's obligations, Article 6 of CISG also provides that the parties may, subject to some conditions, exclude the application of CISG. Therefore, Article 11 of the Contract shall be regarded as a particular agreement between the parties on the remedy claims arising from the quality of the goods, and such agreement does not violate the application of Article 6 of CISG. To this end, the arbitral tribunal was persuaded by the Claimant's point of view that the Respondent's failure to make any response to the Claimant's claims should be deemed to be its acceptance of all the Claimant's requests for remedy, including but not limited to refunding of the purchase price. The Claimant's submissions accordingly had a legal and contractual basis.Thirdly, according to Articles 45.1 and 74 of CISG, if the seller fails to perform its contractual obligations, the buyer may claim compensation from the seller for damages, including profits, suffered due to its breach of Contract. After analyzing the evidence provided by the Claimant, the arbitral tribunal held that in addition to the total amount of the goods, the insurance fee, shipping fee, tax fee, and freight forwarding fee paid by the Claimant for the case were all reasonable losses of the Claimant due to the Respondent's breach of the Contract. At the same time, according to the applicable arbitration rules of the Shanghai International Arbitration Center in this case, the Respondent should bear all the arbitration fees deposited by the Claimant for this case.

Cross-border recognition and enforcement of arbitral awards

According to the judgments published by the Supreme People's Court of the Socialist Republic of Vietnam, the winning party in the case, as mentioned above, applied to the Vietnamese court for recognition and enforcement of the arbitration award made by SHIAC. The parties' application for recognition and enforcement went through the trial of the three levels of courts in Vietnam and has been successfully recognized and enforced by the Supreme People's Court of the Socialist Republic of Vietnam.

SomeTakeaways

This case is a typical "Belt and Road" dispute regarding the international trade of goods in which the arbitral tribunal accurately applied CISG. In this case, the arbitral tribunal is firstly required to examine the provisions of Article 1 of CISG to determine whether CISG should be applied from the perspective of the contracting parties and then to determine whether the goods bought and sold as well as the manner of sale and purchase were within the scope of CISG according to the nature of the transaction. Based on the conclusion that CISG shall apply to the underlying contract, the arbitral tribunal is entitled to determine whether the parties have effectively derogated from the application of CISG according to Article 6.As far as the interpretation of Article 6 of CISG, which allows the parties to derogate from some of the provisions of CISG, the arbitral tribunal, in this case, made an accurate analysis of this article, i.e., when the contractual conditions applicable to a particular matter conflict with the relevant provisions of the Convention, it is presumed that the parties intend to derogate from the requirements of the CISG in respect of the particular issue, without affecting the application of CISG. This construction accurately reflects the legislative intent of CISG that the rules of international sales contracts derive primarily from party autonomy, fully respecting the centrality of party autonomy in international business activities, especially in international trade.With the continuous promotion of the "Belt and Road" initiative, economic transactions between countries along the route are widespread, and the importance of resolution and coordination to conflict of laws is particularly prominent. From the perspective of dispute resolution, the types of transactions involved in the "Belt and Road" economic, trade, and investment projects are getting more abundant and complex, which will result in the more frequent application of international conventions, treaties, and other multilateral agreements in the arena of cross-board dispute resolution. For Chinese commercial entities engaged in economic, trade, and investment transactions along the Belt and Road, it is advised to strengthen further their familiarity with and understanding of international conventions, treaties, and commercial transaction rules to formulate provisions favorable to them when contracting with their trading partners to protect the legal rights. Institutions and experts who provide dispute resolution legal services are required to strengthen further their knowledge and research ability of international conventions, treaties, and commercial transaction rules to correctly and appropriately apply the laws of disputes for the parties and provide legal protection for the proper resolution of transnational trade and investment disputes.

Annex

Article 6 of the CISG provides thatthe parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions.Article 45.1 of the CISG provides that(1) If the seller fails to perform any of his obligations under the contract or this Convention, the buyer may: (a) exercise the rights provided in articles 46 to 52; (b) claim damages as provided in articles 74 to 77.Article 74 of the CISG provides thatthe damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract.