The concept of foreign trade transactions. Foreign trade transaction and features of its execution

The concept of foreign trade activity

Foreign economic activity- this is an activity between economic entities of Russia and foreign economic entities, which takes place both on the territory of Russia and abroad, but with the obligatory crossing of the customs border by the subject of a foreign economic agreement (contract).

The subject of a foreign economic agreement (contract) may be things and other values ​​(including intangible form), which are expressed in monetary terms. Depending on the economic form that property values ​​have, they can be classified as fixed assets, working capital, finance and goods. In international practice, there are the following types of foreign economic activity:

1. Foreign trade activity.

2. Industrial cooperation.

4. Currency and financial - credit operations.

Foreign trade activity (FTA) is one of the major areas FEA. In professional literature, the following definition can be distinguished: foreign trade activity is the activity of business entities in the field of exchanging goods, works, services, information and other factors of production at the international level.

The main form of a foreign trade contract is the subject of which is a product. Under the goods understand the products manufactured by the enterprise or the work and / or services performed by the company.

Regulation of foreign trade activity in international law

In accordance with international law, the concept of goods in contracts of sale is also limited. Among the main international legal means of regulating the relations of the parties under the contract of sale, three main documents can be distinguished:

1. "United Nations Vienna Convention" on contracts for the sale of goods 1980;

2. UNIDROIT principles of international commercial contracts;

3. Rules for the interpretation of international commercial terms Incoterms. These documents complement each other.

The "UN Vienna Convention" does not apply to the sale of:

Goods that are purchased for personal or business use (unless the seller could not have known that the goods were purchased for such use);

From the auction;

Stock papers, shares, money;

Electricity;

Air and water transport vessels;

By way of enforcement proceedings or otherwise by operation of law.

In accordance with the rules of INCOTERMS, goods are understood only as material goods. That is, to the sale of intangible goods (for example, software, rights), as well as works and services, Incoterms do not apply.

Summarizing the above, goods in international sales contracts should be understood as products that have a material form and can be identified at the time of its transfer to the buyer. Such an understanding of goods and taking into account the requirements of international law allows us to give the following definition of foreign trade activity - this is an activity in the field of international exchange of material goods between economic entities of Russia and foreign economic entities, takes place both on the territory of Russia and abroad without the obligatory crossing of the customs border Russia. Restrictions on foreign trade activity by mandatory crossing of the customs border is unacceptable and contradicts the requirements of the UN Vienna Convention, according to which the goods may not cross the customs border of the country, provided that the parties to the contract or one of them, whose law is used in the contract, are in the countries-participants of the Convention.

Subjects and types of operations of foreign trade activities

Participants in foreign trade activities are understood as subjects various forms management and property, the relationship between which is determined not only by the form of the contract, but extends to the regulatory bodies of this activity, participants in settlements for foreign trade operations (WTO). These connections are carried out in two directions:

• vertical - between subordinate enterprises of the same industry, as well as between the state and the subjects of the VTD;
• horizontal - between individual subjects of the VTD and between individual states.

An analysis of the current regulatory acts of Russia made it possible to determine several signs of participants in the VTD and, on their basis, to develop a classification of participants in the VTD (Fig. 1).

Due to the variety of forms of connections, there are several main types of VTD. Their classification, developed in accordance with the definition of foreign trade activity, is shown in fig. 2.

In Russia, the most common operations are operations that are carried out in the following types.

The variety of types of foreign trade transactions in world trade is closely related to the subject of the transaction (goods, services, the result of intellectual activity, equipment rental, etc.), its features (commodities, finished engineering products, etc.) and organizational forms trade in the world market, as well as depending on the distribution channels and the nature of the relationship between foreign trade partners. AT this case foreign trade transactions can be concluded directly - directly between the exporter and importer - or with the participation of intermediaries and intermediary firms.

An international trade transaction is an agreement (agreement) between two or more parties located in different countries ah, for the supply of goods of a certain quantity and quality or the provision of services in accordance with agreed conditions.

The definition of the international nature of the transaction is given in the UN Convention on Contracts for the International Sale of Goods (Vienna Convention 1980) and in the New Hague Convention on the Law Applicable to Contracts for the International Sale of Goods 1985.

Such an interpretation of the concept of a trade transaction is applicable to all business transactions, namely: production, agricultural, concluded at construction, publishing, entertainment and other enterprises, financial and banking sectors related to the circulation of goods and money, during transportation, forwarding, storage, insurance , advertising goods, etc.

Neither the nationality of the parties, nor their civil or commercial status, nor the nature of the contract are criteria for classifying a transaction as an international one.

Evidence of the international nature of the contract is only one sign - the location of commercial enterprises of counterparties in different states.

In international practice, there are various criteria determining the ownership of a commercial enterprise to a particular state. Such criteria may be: the place of establishment (USA, Great Britain), the location of the board of the legal entity (France, Germany), the place of main activity of the legal entity (Italy). To determine the legal capacity of enterprises in transactions, the criterion of the place of their establishment as a legal entity is used. It is necessary to clarify the criterion for classifying a transaction as an international one, which takes place not only in international law entrepreneurial activity but also in legal personal or property relations. It is considered that relations acquire an international character if they are connected with more than one system of international law.

For example, the sale by an Italian of a house built in Germany can be considered an international transaction, since the location of the house links the transaction with German law, and the seller's citizenship with Italian law. Proceeding from this, the circulation of a bill or check acquires an international character, crossing many national borders and colliding with the law of several states.

The legal basis for international commercial transactions is the institution of an international commercial transaction. The sources of law in this case are international agreements, rules, conventions, national legislation, systems of normative acts regulating the procedure and forms of transactions concluded with a foreign partner, their content, the conditions for the validity of the transaction and the legal consequences of its invalidity.

In relation to the contractual relations of entrepreneurs with partners of foreign states, various terms are used: “deal”, “agreement”, “agreement”, “contract”. As you know, the concept of “deal” is wider than the concept of “agreement / contract”.

Transactions are recognized as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations (Article 154 of the Civil Code of the Republic of Belarus).

Two - or multilateral transactions are called contracts. The terms "deal", "contract", "agreement" in relation to relations in foreign economic activity mean an agreement. Relations arising from an agreement / contract are called contractual (contractual), and the obligations of the parties arising from the agreement (contract) are called obligations under the agreement (contract).

Basic legal requirements for the content of foreign trade transactions. foreign trade transaction contract legislation

Legal entities and entrepreneurs are obliged to provide for the following conditions in foreign trade agreements:

• date and place of conclusion of the contract;
• the subject matter of the contract;
• the quantity and quality of goods;
• the prices of goods;
• conditions of calculation and delivery;
• currency of payment;
• the name of the country and destination of the exported goods;
• · terms of delivery of the goods;
• the liability of the parties;
• the procedure for resolving disputes;
• legal addresses and bank details (settlement account, bank name) of the parties.

An entrepreneur entering a foreign market must have a certain amount of legal knowledge about the features of a foreign trade contract of sale, about the legal regime in force in international trade.

In practice international trade The following sources of regulation of foreign trade purchase and sale relations are used:

• · UN Convention on Contracts for the International Sale of Goods;
• The United Nations Convention on the Limitation Period in International buying and selling goods (1974);
• · Convention on the International Sale of Goods (1985).

In the practice of international trade, the UN Vienna Convention on Contracts for the International Sale of Goods is most widely used. It was signed in Vienna on April 11, 1980 and entered into force on January 1, 1988 for states that had ratified or acceded to it at that time.

Introduction.

Currently, the Russian economy is undergoing dramatic changes - there is a transition to market relations. This process is, of course, very complex and fraught with significant difficulties. Among the positive aspects can be attributed a surge in entrepreneurial activity and, as a result, a significant increase in trade turnover within the country, as well as an increase in export-import operations. According to Article 1 of the Decree of the President of the RSFSR dated November 15, 1991 "On the liberalization of foreign economic activity on the territory of the RSFSR" (1), all enterprises registered in Russia have the right to carry out foreign economic activity. A significant number of foreign trade agreements are agreements (contracts) of sale and purchase, as a result of which the issues of concluding and executing these agreements have acquired exceptional relevance at the moment. It should be said that the collapse of the USSR into independent states automatically transferred contracts between organizations and firms of these states from the category of domestic economic to the category of foreign economic. Indeed, if Ukraine, for example, has become independent state, then the organization located on its territory became a foreign legal entity, which entailed a change in the nature of the contract concluded with the Russian company. It should be noted that the number of such contracts has increased dramatically, but their quality leaves much to be desired. It was this circumstance that determined the choice of the topic, and a little practical experience in this area predetermined the main goal of the study - to analyze international standards and practice in order to bring foreign trade contracts concluded by Russian entrepreneurs into line with them.

1. The concept of a foreign trade transaction.

In the process of implementing trade, economic, scientific, technical and other international relations between organizations and firms of various states, big number agreements, commonly referred to as contracts. Foreign trade transactions in their totality form an international trade turnover, the progressive development of which is expressed both in the growth of its volume in terms of value and in the progressive variety of its forms, which, in turn, causes the emergence of more and more new types of international trade contracts. With regard to the formalization of relations that are regulated by these agreements, various terms are used: "deal", "agreement", "contract", "agreement", "agreement" (2). A number of authors identify these concepts (3), especially "deal" and "agreement", and the latter is often referred to as a contract in foreign economic practice. But, it seems that the concept of "transaction" is wider than the concept of "agreement". The contract involves an agreement between the parties that specifically defines these parties, the subject in respect of which an agreement is reached that secures the rights and obligations of the parties, in other words, it is the execution or payment of the transaction. At the same time, the range of issues in relation to the transaction and the contract itself differs. Therefore, it is advisable to dwell on each of them separately.

K. Schmitthoff conditionally divides foreign trade transactions into two large groups: "... transactions based on an international sale and purchase agreement, and transactions the subject of which is the provision of services abroad, for example, the construction of facilities in another country." () But before moving on to a more detailed study of foreign economic (foreign trade) transactions it is necessary to give the very definition of a foreign trade transaction. There are different points of view, each of which is of interest. By transactions in general, the Civil Law of the Russian Federation understands a lawful action, an act of will. Article 26 of the Fundamentals of the Civil Legislation reads: "The actions of citizens and legal entities aimed at establishing, changing or terminating civil rights or obligations are recognized as transactions. Transactions can be unilateral and bilateral or multilateral (contracts)." () The legislator does not give the concept of a foreign trade transaction . Of course, having the features inherent in transactions in general, foreign trade transactions also have specific features.

Various scientists distinguish various characteristics foreign trade transaction, but the most commonly referred to is a "foreign element" (that is, a foreign legal or individual) and commercial (trading) character. So, Boguslavsky M. M. offers the following definition: “Foreign trade transactions, the Soviet doctrine includes transactions in which at least one of the parties is a foreign citizen or a foreign legal entity and the content of which is operations for the importation of goods from abroad or for the export of goods abroad border, or some ancillary operations related to the export or import of goods "(). This point of view on the concept of a foreign trade transaction is shared by Lunts L. A. But it is criticized by Musin V. A., who notes the following shortcomings in this definition: indications of the commercial nature of a foreign trade transaction, which is understood, for example, "... the acquisition of goods for further resale or for industrial consumption" (the definition, in his opinion, is focused on contracts for export-import sales and sales operations (transportation, forwarding, goods insurance and so on), however, in modern conditions sale and purchase is far from exhausting the whole variety of international trade transactions, since there are many transactions of a different legal nature ().

Both of these remarks seem to be quite fair. One can only add that the concept of commercial (trading) nature can be defined as an activity for the purpose of making a profit. In addition, Musin believes that only the presence, the combination of both features (foreign element and commercial nature) can qualify the transaction as a foreign trade transaction.

He emphasizes that such signs as the place of conclusion and execution of a foreign trade transaction on the territory of various states; making an offer and acceptance on the territory of various states; the presence in the territory of various states of the points of departure and destination of the goods sold (crossing borders) are not decisive (as they were recognized in the Hague Convention on a Uniform Law on the International Sale of Goods 1964), since a transaction concluded at an exhibition of goods in a particular country , will not have any of these features, remaining essentially foreign trade ().

Based on the foregoing, he defines foreign trade transactions as "... transactions made for commercial purposes by persons of different nationality and entailing the emergence, change and termination of civil rights and obligations associated with the creation, use or sale of material goods or other results of human activity "().

It appears that this definition most fully characterizes foreign trade transactions and corresponds to the real state of affairs at the present moment, and, most importantly, it goes in line with the 1980 Vienna Convention on Contracts for the International Sale of Goods, which requires a transaction of this kind to have only one sign: the location of commercial enterprises of counterparties on territories of various countries.

It should be noted that there are other definitions of a foreign trade transaction, taking into account the 1980 Vienna Convention. So Pozdnyakov V. S. defines a foreign trade transaction as "... an action aimed at establishing, changing or terminating civil rights and obligations for the export and / or import of goods, services and results of creative activity, as well as civil rights inextricably linked with foreign trade and obligations of an organizational nature "(), and Zykin I.S. as "... agreements (transactions) made for economic purposes between persons whose commercial enterprises are located in different states"().

It seems that this point of view has won many supporters and, obviously, is the most acceptable at the moment.

2. The procedure for concluding a foreign trade transaction.

a) offer and acceptance in foreign trade transactions

Directly the conclusion of a foreign trade transaction occurs through the exchange of an offer and an acceptance. The fundamentals of the Civil Legislation in Article 58, clause 3 give the following definition of an offer and an acceptance: "An offer to conclude an agreement made to one or several specific persons is an offer to conclude an agreement (offer), if it is sufficiently specific and expresses the intention of the person who made the offer to consider bound in the event of its acceptance (acceptance)".

As a rule, the exchange of offer and acceptance is preceded by negotiations. They may or may not lead to a contract. The first contact between the parties may take the form of a request or an invitation to conclude a contract, which is usually contained in a catalogue, advertisement, invitation to bid for a building or other work.

Statements that take place during negotiations are not contractual (offer or acceptance) unless these statements are incorporated into the contract (included in its text). But it cannot be said that they do not have legal significance; thus, if the contract is ultimately concluded, the pre-contractual statement may be regarded as misleading, and if the contract is not concluded: "... the information transmitted during the contracts may be of a confidential nature and its disclosure may entail the application of legal remedies "(1) .

At the same time, the issue of delimiting the request - offer from the offer itself is difficult. As Schmitthoff writes: “It depends on the intentions of the parties and, above all, the person who makes the request, whether such a request means an invitation to conclude a contract or is it already an offer. Usually, a request is only an invitation to conclude a contract. In this case, the person to whom the request is addressed, makes an offer, and the sender of the request decides whether to accept or reject it.... On the other hand, a request may contain all the elements of an offer and legally qualify as such. Note that what is decisive here is the intention of the party making the request"( 2).

Sometimes the parties have lengthy and detailed negotiations, especially if the deal is large. Sometimes it is difficult to determine whether an agreement has been reached or whether negotiations have failed because the parties have not been able to resolve all disputed issues. If the parties have reached an agreement on all material points and left only the details for later settlement, they have concluded a valid deal. However, if the agreement of the parties lacks the conditions necessary to give it coercive force, there is no contract in the legal sense.

It seems necessary to give the definition of an offer contained in the 1980 Vienna Convention on Contracts for the International Sale. Article 14 of the Vienna Convention states: "

1) An offer to conclude a contract addressed to one or more persons is an offer if it is sufficiently defined and expresses the intention of the offeror to be bound in case of acceptance. An offer is sufficiently definite if the goods are indicated in it and the quantity and price are directly or indirectly established, or the procedure for their determination is provided.

2) An offer addressed to an indefinite circle of persons is considered only as an offer to make an offer, unless otherwise expressly indicated by the person who made such an offer.

The Convention regulates the issues of the entry into force of an offer and the revocation of an offer (the Fundamentals of Civil Law did not affect these issues): "... 1) An offer enters into force when it is received by the addressee of the offer. 2) An offer, even when it is irrevocable, can be canceled by the offeror, if the notice of cancellation is received by the addressee of the offer earlier than the offer itself, or simultaneously with it" (Article 15 of the Convention). This possibility of revoking an "irrevocable" ("firm") offer is the only one. For comparison, we can cite the provisions of English law, where an offer can be withdrawn up to its acceptance, unless it is accompanied by consideration (otherwise it becomes an option) and it is not expressed in the form of a document "behind the seal" (deed). An offer can be withdrawn even if it is made in the form of a "firm" offer, that is, it states that the offeror considers himself bound by the offer for a certain period (1). The Vienna Convention of 1980 resolves the issue of withdrawal of an offer in Article 16 as follows: "... 1) Until the contract is concluded, the offer may be withdrawn by the offeror if the notice of withdrawal is received by the addressee of the offer before sending them an acceptance. 2) However, the offer is not may be revoked: (a) if the offer indicates, by fixing a time limit for acceptance or otherwise, that it is irrevocable; or (b) it was reasonable for the offeree to treat the offer as irrevocable and the offeree acted accordingly."

Article 17 of the Convention states: "An offer, even if it was irrevocable, ceases to have effect upon receipt by the offeror of notification of the rejection of the offer."

Acceptance is defined in the 1980 Vienna Convention in Article 18, paragraph 1: "... as a statement or other behavior of the offeree expressing agreement with the offer. Silence or inaction in itself is not an acceptance." Schmitthoff identifies the following requirements for acceptance: “The acceptance must be unconditional and unconditional. Otherwise, it is a rejection of the original offer with elements of a counteroffer. Therefore, if the original offeror receives a qualified acceptance and does not clearly express his consent, there is no contract; the offeror is under no obligation to respond to the amended acceptance, although complete silence is hardly good business practice" (1). Similar provisions are found in the Fundamentals of Civil Legislation.

Article 19 of the Convention adds further detail to the definition of acceptance. It reads: "1) A response to an offer that purports to serve as an acceptance, but contains additions, limitations or other changes, is a rejection of the offer and constitutes a counter-offer. 2) However, a response to an offer that purports to serve as an acceptance, but contains additional or differing terms that do not materially change the terms of the offer constitutes an acceptance unless the offeror, without undue delay, orally objects to the difference or gives notice to that effect. acceptance". The question immediately arises: what conditions significantly change the terms of the offer? The Convention provides an answer to this question in paragraph 3 of Article 19: "... additional or distinctive conditions regarding, among other things, price, payment, quality and quantity of goods, place and time of delivery, the amount of liability of one of the parties to the other or resolution of disputes shall be deemed to materially change the terms of the offer." The Convention does not say anything about the case when the offeror receives a counter-offer instead of an acceptance. It seems that the solution to this issue is uniform, both in the internal law of the Russian Federation and other states, and in international treaties: the offeror can directly reject the amended acceptance (counter-offer ), or reject it in silence, subject, of course, to the requirements of Article 19 of the Convention.

The moment of conclusion of the contract is connected with the exchange of offer and acceptance. The fundamentals of the Civil Legislation of the USSR in Article 58, clause 4 and clause 5 regulate this issue as follows: "Clause 4 response on the acceptance of the proposal within this period.p.5 When an offer to conclude a contract is made orally without specifying a deadline for a response, the contract is considered concluded if the other party immediately declared to the person who made the offer that the offer was accepted.When such an offer is made in writing , the contract is considered concluded if the response to the acceptance of the proposal is received before the deadline established by law, and if it is not established, within the time normally required for this.

Taking into account the provisions of the Russian legislator, let us consider the provision of the Vienna Convention of 1980, which will be applied when concluding a foreign trade transaction. It addresses this issue in more detail. So Article 23 of the Convention reads: "... The contract is considered concluded at the moment when the acceptance of the offer enters into force in accordance with the provisions of this Convention." Further, in Article 18, clause 2, this moment is also determined: "The acceptance of the offer enters into force at the moment when the specified consent is received by the offeror. The acceptance is not valid if the offeror does not receive the specified consent within the period set by him, and if the period is not set, then within a reasonable time, taking into account the circumstances of the transaction, including the speed of the means of communication used by the offeror. An oral offer must be accepted immediately, unless the circumstances indicate otherwise."

Special attention should be paid to the provision that is absent in the Fundamentals of Civil Law, namely: "... if, by virtue of an offer or as a result of the practice that the parties have established in their mutual relations, or custom, the addressee of the offer may, without notifying the offeror, express consent by taking any action, in particular an action relating to the dispatch of the goods or the payment of the price, the acceptance shall take effect at the time such action is taken, provided that it is done within the period provided for in the previous paragraph (art. 18, paragraph 3 Convention)."

As you know, this acceptance by action is rare in our practice of concluding transactions; nevertheless, a foreign counterparty can make it, and one must be prepared for this.

The question of receiving an acceptance late is also important. The Vienna Convention primarily regulates the issue of the flow of time for acceptance (this is not in the Fundamentals of Civil Law). So Article 20 of the Convention states: "1) The period for acceptance set by the offeror in a telegram or letter begins from the moment the telegram is handed over for sending or from the date indicated in the letter, or, if such a date is not indicated, from the date indicated on envelope. In addition, non-working days and holidays are included in this period, except for the case when the notice of acceptance was late on the last day of the period due to a holiday or holiday.

The Fundamentals of the Civil Legislation of the USSR and the Vienna Convention of 1980 solve the issue of late acceptance in different ways. So, within the meaning of the Fundamentals, a late acceptance loses its force, and the Convention allows it to remain in force (Article 21, paragraph 1): “A belated acceptance, however, retains the force of acceptance if the offeror without delay notifies the addressee of the offer orally or sends appropriate notice to him. The Fundamentals of Civil Legislation (Article 58, Clause 6) says: “If it is clear from a late response on consent to conclude an agreement that the response was sent in a timely manner, it is recognized as late only if the person who made the offer immediately notifies the other party about receiving a response late. In this case, a response received late is considered a new offer to conclude a contract." Here, as we see, the legislator protects the interests of the person who accepted the proposal (especially since the delay was not his fault). The Convention resolves this issue differently (Article 21, paragraph 2): “When it is clear from a letter or other written communication containing a belated acceptance that it was sent in a timely manner, the belated acceptance retains the force of acceptance, unless the offeror without delay notifies the addressee of the offer orally that he considers his offer to be invalid, or will not send him notice of this. The drafters of the Convention, it seems to us, took a slightly different path: the offeror immediately decides whether to recognize such an acceptance as valid or reject it, regardless of the reasons for the late acceptance.

The Convention, moreover, permits the withdrawal of an acceptance (Art. 22), but on condition "... that the notice of withdrawal is received by the offeror before or at the same moment when the acceptance should have taken effect".

Finally, Article 24 of the Convention defines the concept of "received" (offer, acceptance, and so on) - this is when they are communicated orally or delivered in any way personally, in commercial enterprise or by postal address or at the address of permanent residence.

As we can see, the issue of the exchange of offer and acceptance is very detailed and regulated in the 1980 Vienna Convention. Of course, such close attention of the compilers of the Convention is due to the importance of this moment for the further cooperation of the parties to a foreign trade transaction, as well as (and rather to a greater extent) the fact that the internal law of each state has its own specifics in regulating this issue.

The issue of the procedure for concluding a foreign trade transaction presents a certain difficulty due to the accompanying problems regarding the form of the transaction and the law to be applied.

b) Form of a foreign trade transaction

The issue of the form of a foreign economic transaction is regulated in the Fundamentals of the Civil Legislation of the USSR and the Republics of 1991. Thus, Article 27 of the Fundamentals reads: “A transaction for which the legislation does not establish a written (simple or notarial) or other specific form can be made orally. Such a transaction is considered completed even if the behavior of a person shows his will to make a transaction ". But the form of foreign economic transactions is defined separately in Article 165, clause 1: “The form of a transaction is subject to the law of the place where it was made. However, a transaction made abroad cannot be invalidated due to non-compliance with the form if the requirements of Soviet law are met.

The form of foreign economic transactions made by Soviet legal entities and citizens, regardless of the place of these transactions, is determined by the legislation of the USSR.

For foreign economic transactions law Russian Federation established a written form (Resolution of the Council of Ministers of February 14, 1978 "On the procedure for signing foreign trade transactions") (1). However, there is a clause in the Fundamentals of Civil Legislation in Article 170: "If an international treaty in which the USSR participates establishes rules other than those contained in Soviet civil legislation, then the rules of the international treaty shall apply."

Russia, as the legal successor of the USSR, is a party to the 1980 Vienna Convention "On Contracts for the International Sale of Goods." Article 11 of this Convention states: "The contract of sale is not required to be concluded or confirmed in writing or subject to any other requirement as to form. It may be proven by any means, including testimony."

This provision of the Convention is contrary to the requirements of Russian legislation, and therefore, when ratifying the Convention, the Russian government (along with the governments of Argentina, Belarus, Ukraine, Chile) stated that "... in accordance with Articles 12 and 96 of the Convention, which allows that the contract of sale or its amendment or termination by agreement of the parties, or the offer, acceptance or any other expression of intent was not in writing, not applicable if at least one of the parties has its place of business in the above states.

Thus, we see that a written form is still required for foreign trade transactions concluded by Russian persons. And non-compliance with the written form entails the invalidity of the foreign economic transaction (clause 2, article 30 of the Fundamentals of Civil Legislation).

With regard to a foreign economic transaction, one more article of the 1980 Vienna Convention should be noted, which establishes that "... for the purposes of this Convention, "writing" also means communication by telegraph and teletype." This remark seems to be very relevant, since these types of information transfer are widely used in transactions.

c) applicable law

When entering into a transaction, the parties must also decide on the choice of law applicable to the transaction. In other words, the parties should establish what legislation will regulate the relations arising from the transaction. The parties can do this by virtue of autonomy of will, which consists in their right to determine the content of the transaction at their discretion.

The autonomy of the will of the parties is usually recognized in the legislation of various states, but its permissible limits are understood in the laws of states in different ways. In some countries (including the Russian Federation), the autonomy of the will is not limited by anything, that is, the parties can subordinate the transaction to any legal system. In other countries, the principle of localization of the contract applies: the parties can freely choose the law, but only the one that is associated with this transaction. In the absence of an express will of the parties, when determining the applicable law, the court or arbitration creates great opportunities margin of appreciation in interpreting the presumed will of the parties. English arbitrage practice(like the American one) goes in this situation along the path of finding the law inherent in this agreement (localization of the agreement). The German system of law proceeds from the principle of the autonomy of the will of the parties. If there is no choice, the law of the state with which the contract is most closely connected shall apply.

As already noted, the principle of autonomy of the will of the parties is applied in the Russian Federation. The Fundamentals of the Civil Legislation regulate this issue as follows in Article 166, Clause 1, Part 1: "The rights and obligations of the parties in foreign economic transactions are determined by the law of the country chosen by the parties when making a transaction or by virtue of a subsequent agreement." Of course, this agreement of the parties should be reflected in the deal. If there is no such agreement, then "... the law of the country where the party is established, has its place of residence or principal place of business, which is:

1) by the seller - in the contract of sale

2) by the landlord - in the lease agreement

3) by the licensor - in a license agreement on the use of exclusive or similar rights

4) by the custodian - in the storage agreement

5) commission agent - in the commission agreement

6) attorney - in the contract of agency

7) by the carrier - in the contract of carriage

8) forwarder - in the contract of transport expedition

9) by the insurer - in the insurance contract

10) by the creditor - in the loan agreement

11) by the donor - in the donation agreement

12) by the guarantor - in the surety agreement

13) by the pledgor - in the pledge agreement, and so on"

(Article 166, paragraph 1, part 2 of the Fundamentals of Civil Legislation). It seems that the legislator has clearly defined his position. However, it must be recalled that "... if an international treaty in which the USSR participates establishes rules other than those contained in the Soviet Civil Legislation, then the rules of the international treaty shall apply" (Article 170 of the Fundamentals of Civil Legislation).

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The concept of a foreign trade transaction.

Trade- an industry that serves the sphere of commodity circulation. It includes not only the actual purchase and sale of goods and services, but also all operations related to the promotion of goods from the seller to the buyer.

International trade- an industry that serves the sphere of commodity circulation between producers of different countries. Arises on the basis international division labor and determines the mutual economic dependence of countries.

foreign trade deal(VTS)- actions aimed at establishing, changing or terminating legal relations in the field of foreign trade. Includes purchase and sale, transport, banking, insurance and other operations.

The defining feature of military-technical cooperation is its conclusion with foreign partner(not a resident).

Since military-technical cooperation is regulated by law in a special way, differently than other transactions, the defining feature of military-technical cooperation is of fundamental importance.

Other signs (crossing the border by the goods, paying for the transaction in foreign currency, etc.) are secondary, insignificant.

Payment balance. The results of foreign economic activity are reflected in balance of payments countries. The balance of payments is the ratio of a country's payments abroad to its receipts from abroad over a certain period. If receipts exceed payments, the balance of payments is active (has a positive or positive balance), otherwise it is passive (has a passive or negative balance).

The main part of the balance of payments is formed at the expense of the foreign trade balance - the ratio of paid exports (the sum of exports and imports is called "trade turnover").

Any state strives for an active balance of payments, contributes to the worldwide expansion of export operations and the containment of imports in the necessary, reasonable volumes.

Types of foreign trade transactions.

The main foreign trade transactions of purchase and sale:

- Export (commodity and "invisible") - the sale of goods to a foreign buyer. "Invisible" exports are the sale of transport services of the domestic fleet to foreign charterers, servicing foreign tourists, insurance and credit operations for foreign clients, etc.

- Import - purchase of goods from a foreign seller for subsequent processing, consumption or resale in the domestic market.

- Re-export – purchase of goods from a foreign seller and resale of these goods to a third country without intermediate processing. It can be with the importation into the country of the re-exporter or without such importation. The ultimate goal of a re-export transaction is precisely the resale of goods to a third country.

Re-exporting can be an unfair commercial practice - developing new markets and creating your own trade network with the help of other people's goods in order to subsequently promote your own.

- Re-import – return of export goods not sold for any reason, i.e. re-importation of exported goods. Such operations have practically no commercial value.

Counter trade (countertrade) - combines export and import obligations in one deal, i.e. the exporter undertakes to purchase goods from the importer for a part or the full value of the exported goods.

Differ barter deals and compensation agreements.

barter deals - non-currency, but valued and balanced exchange of goods, drawn up by a single contract. Goods are valued for equivalence of exchange, customs and insurance purposes, as well as for possible claims.

Compensation agreements provide for the construction industrial enterprises, supply of equipment and technologies with subsequent payment for the company's products.

Compensation transactions for a wide range of goods are concluded by specialized export-import trading companies (“Impex”). Such transactions involve a large number of suppliers and consumers of various export and import goods (see diagram).

Firms A and B agree on two lists of mutually supplied goods. Each firm purchases the necessary goods from domestic suppliers and transfers them to a partner firm, which sells these goods on its market to domestic consumers. Settlements between trading firms and domestic suppliers and consumers are carried out in national currency.

Conclusion of a foreign trade deal.

One-time transactions provide for a single act of sale and purchase, short-term legal relations between the parties. Although the quantity of goods in a transaction may be quite large, the goods may be delivered in several shipments over a period of time, and the transaction may be paid for in several payments.

Long-term contracts are concluded for long term(several years) and provide for regular deliveries of certain goods during this period.

Long-term foreign trade contracts are the basis for the conclusion of long-term freight contracts (contract of affreightment, CoA).

The initiator of a foreign trade transaction can be both the seller and the buyer. The process of concluding a contract can be reduced to the “offer-counter-acceptance” scheme, or the contract is concluded as a result of personal negotiations.

The process of submitting an offer and its acceptance is regulated in detail by the UN Convention on Contracts for the International Sale of Goods (Vienna Convention 1980).

Seller's offer should be made as concisely, clearly and clearly as possible, excluding double interpretation and the need for additional requests and clarifications.

The offer must be convincing, digital data is more convincing than unfounded arguments, it is important to show the buyer what benefits and benefits he will receive by accepting the offer. It should be borne in mind that different customers may have different goals: some want cheaper, others want higher quality.

The offer may be hard or conditional(free).

A firm offer obliges the offeror (seller) to conclude an agreement on the conditions proposed in the offer.

A conditional offer does not impose any obligations on the offeror, but therefore it arouses little interest in the buyer.

The offer may be accompanied by standard terms of the contract and a certificate of the firm-seller (in the language of the client-buyer).

Buyer's offer is always free. It is important to decide how many offers to send out: few offers may not generate an acceptable response offer, many offers may cause market hype and price increases.

3.2. Trade negotiations are conducted on:

Large, long-term contracts;

Unique and complex objects (complex equipment, ships, aircraft, etc.);

Non-commodity foreign trade transactions (licenses, leasing, cooperation, contracts, etc.).

Personal negotiations can begin with an exchange (sometimes repeated) of letters of intent (letter of intend).

In some cases, the exchange of letters may end with a "preliminary agreement".

Negotiations are conducted with the participation of experts (technical, financial, legal). Experts do not have the right to interfere in the dialogue of the parties and can only speak on direct orders. They usually give their opinion only the head of the delegation.

Negotiations consist of a consistent discussion and agreement on the terms of the contract: subject matter, essential conditions, other conditions.

According to Article 432, Clause 1 of the Civil Code of the Russian Federation, “A contract is considered concluded if an agreement is reached between the parties, in the form required in appropriate cases, on all essential terms of the contract. Essential are the conditions on the subject of the contract, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions on which, at the request of one of the parties, an agreement must be reached.»

A foreign trade transaction must be concluded in writing, in accordance with Article 162, clause 3 of the Civil Code of the Russian Federation “Failure to comply with a simple written form of a foreign economic transaction entails the invalidity of the transaction.”

1. Negotiate with people authorized to make deals.

2. Do not start immediately with business issues, but talk about abstract topics.

3. It is important to know the degree of interest of the partner in the conclusion of the contract.

4. Clearly explain to the client what benefits he will receive by concluding a deal. Show no interest. Don't be hasty.

5. Constantly control your actions and words. Watch your partner's reaction. Treat your partner with courtesy, kindness, and respect. Avoid rudeness, irritation. Too formal atmosphere does not lead to success.

6. Strive to keep the initiative, and leave the final answers to the partners. Do not give unintelligible answers, it is better to postpone the answer to the future.

7. Stubbornness on minor issues delays negotiations and can lead to the loss of the contract. "You shouldn't put off signing a contract until tomorrow if it can be signed today."

8. Strive to obtain agreement on individual points - "positional method".

9. Leave one or two conditions unagreed until the end, so that you can refuse the entire contract.

10. Some conditions can be accepted in the finished standard form without discussion.

11. Either be fluent in the language of negotiations, or use an interpreter.

12. Keep a diary of negotiations.

13. Client objections - an indicator of the client's interest in the transaction.

14. Anticipate customer objections.

15. To the erroneous opinion of the client is treated gently, with understanding, not to emphasize his mistake, but vice versa.

16. Prevent objections with leading questions in the most advantageous formulations.

17. Respond to objections as soon as possible. Do not put off important arguments until the moment when the client loses interest in the transaction. If it is not possible to answer right away, either try to focus the client's attention on the most attractive points, or postpone the answer for later, but do not give false or incomprehensible answers.