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Il "countertrade" e le sue tecniche Guida agli scambi in compensazione |
Contratto di compensazione fra la "Phosphates Corp." e la "A.B.C. Co." per uno scambio di fosfati contro beni strumentali. Il testo sottoriportato rappresenta un esempio di operazione compensativa definita, dalle parti contrenti, di "barter". In realtà l'esistenza di un unico contratto che regola sia la vendita dei beni primari che quella dei beni secondari e la circostanza di due beni che vengono scambiati in un arco temporale relativamente breve per un pari valore, potrebbero far configurare il tutto nello schema del "barter". Si rileva, peraltro, che i beni strumentali venduti dalla A.B.C. Co. servono proprio per estrarre i fosfati con i quali la Phosphates Corp. pagherà i macchinari importati e quindi, da un altro punto di vista, l'operazione potrebbe essere definita di "buy back". In una diversa ottica lo si potrebbe infine definire di semplice controacquisto. In ogni caso di tratta di uno schema contrattuale interessante per la completezza e la complessità delle formule adottate a cautela dei vari rischi ed interessi delle parti in causa. Between: (Per un più completo esame del "caso" qui presentato si presentano, di seguito, i testi dei più significativi "Annexes" citati nel testo del contratto)
a) "Phosphates Corp." ............ represented by..........., hereinafter referred to as the "Administration", and:
b) "A.B.C. Co." ......... represented by........, hereinafter referred to as the "Contractor"
has been hereby agreed on the following contract:
Article 1 - Definitions
The Administration means "Phosphates Corp." ........
The Contractor means "A.B.C. Co." ........
Supplies mean equipment and attachments concerning the supply of .....products as per Contractor's offer dated ......... as shown in Annex I to this Contract.
Contract Value means the amount mentioned in this Contract concerning the supply of ....... equipment. In case the Administration requests increases of quantity up to 25 % as per Article 10 of this Contract, the Contract Value will be increased by the same value.
Phosphate Letter Of Credit means the Letter of Credit opened by .......... in favour of the Administration as per Annex III to this Contract, covering the value of phosphate sold.
Supplies Letter Of Credit means the Letter of Credit opened by ........in favour of the Contractor as per Annex III to this Contract , covering the value of the Supplies.
Article 2 - Subject of the Contract
The purchase of ............. by a barter against phosphate, as specified in Annex V to this Contract.
Article 3 - Contract documents
The following documents are considered as integral part of this Contract and shall be referred to for any clause omitted by this Contract:
- This Contract and all Annexes,
- General conditions book, established ..........
- Contractor's offer dated ..........
Article 4 - Contract comprehension
Once the Contractor and the Administration have signed this Contract both parties are considered as having studied, understood and comprehended all Contract articles, technical specifications and all attached documents and that they will execute their commitments hereby as per Contract articles and conditions.
Article 5 - Contract Value
-The unit purchase price, FOB nominated vessel loading at ......Port of Exit, .... Ocean Freight collected and on Liners term, shall be US $............ Total for ...... is US $............
-The total price of the phosphate purchases sold by the Administration and purchased by the Contractor shall be as follows:
a)The phosphate price per metric ton for 30,5 % grade phosphate P 205 on dry basis shall be US $ .....FOB ......normally trimmed.
b)To determine the basic quantity of phosphate to be sold by the Administration and to be purchased by the Contractor, the Contract Value subject to this Article shall be divided by the FOB ...Port value per metric ton as outlined above which then shall be considered to be the total basic tonage of phosphate to be sold by the Administration and to be purchased by the Contractor under this Contract.
c)In case a higher than 30,5 % grade phosphate is delivered by the Administration, the metric ton price of phosphate shall be increased according to the following formula:
(US $ ..... x P 205 Grade : 30,5)
d)The same formula shall apply for lower than 30,5 % grade phosphate supplied, i.e. price shall be reduced accordingly.
e)It is understood that depending on the final phosphate price the quantity of phosphate purchased/sold is reduced or increased to meet the Contract Value covering the Supplies.
The Contractor has the right to reject phosphate delivered with a grade lower than 30 % and/or phosphate with humidity in excess of 3 % whether loaded on board vessel or not, and all charges in conjunction with such reject, including demurrages, will be for the Administration account.
The quantity and quality of the phosphate shall be checked, controlled and certified by the Agent in .......of ......... For each ship load a quantity and quality certificate shall be issued by the Administration which shall after verification be stamped and certified by the Agent of .....in .......
This quantity and quality certificate shall be binding for the Contractor and the Administration.
Charges incurred for the quantity and quality control in ..... shall be for the Contractor account.
Variations in phosphate purchases versus the Contractor's supplies value shall be settled through spare parts deliveries.
Article 6 - Payment against barter of phosphate
a) Not later than seventy days from the signature date of this Contract, or fifteen days from the approval date of this Contract, if earlier, ........... Bank shall open a special blocked deposit account in US dollars in the name of ........ under the heading ...... with ......., through the intermediary of .......
This account shall be used for this Contract and will be credited with the payment of the phosphate export to the Contractor done by the Administration. This account shall be debited with the payment of the export of the Contractor's Supplies subject of this Contract.
b) The payment for the phosphate invoiced to the Contractor will be effected against a sight confirmed letter of credit, referred to Phosphate Letter Of Credit, opened in favour of the Administration for hundred per cent of the basic phosphate value, to be opened by the Contractor not later than ten days after opening the trade exchange account ......
This letter of credit will only become operative if a letter of credit of equivalent value, referred to as Supplies Letter Of Credit, will be opened by the ........ Bank on behalf of the Administration in favour of the Contractor, through ........., through the intermediary of .........and confirmed by the latter.
This Supplies Letter Of Credit shall be opened by the Administration not later than twenty days from opening date of the Phosphate Letter Of Credit and shall be valid and fully operational during one year from opening date.
Payment resulting from the negotiation of the Phosphate Letter of Credit will be effected to the blocked deposit account named ...... in the name of .........Bank , by .........through the intermediary of ........Bank , after presentation of the documents in ....., in good order as stipulated in the Phosphate Letter Of Credit sample in Annex III to this Contract.
c) This Supplies Letter Of Credit shall be opened by the ......Bank , on behalf of the Administration in favour of the Contractor with ......, confirmed by the latter, and shall have initial validity of twelve months from the opening date. This Supplies Letter Of Credit shall be operative upon receipt by Contractor of a confirmation issued by .......Bank that sufficient funds to cover the value of this Supplies Letter of Credit are accumulated in the ........Account in the name of .....Bank with ....... This Supplies Letter of Credit shall be available at sight against presentation of documents outlined in Annex III of this Contract for total or partial shipments.
The Contractor shall not be obliged to ship the Supplies subject of this Contract prior to receipt of an acceptable Supplies Letter of Credit as stipulated in this Article 6 and in Annex III of this Contract.
The funds credited into the blocked account in favour of Contractor at .....Bank shall be unblocked as drawdowns by the Administration under the Phosphate Letter of Credit occur and are credited to the ......Account. Interest at a rate determined between ......Bank and ......Bank - however not lower than LIBOR - shall be credited to the Contractor account on the balance of this account during a maximum period of five months calculated from the credit of the funds into this account.
In case the Contractor has not taken phosphate delivery within the five months from the credit of the funds into the blocked Contractor's account, for other reasons than force majeure, the interest normally occur after the five months period shall be credited to the Administration through the blocked ......account in the name of .....Bank.
d) It is specifically agreed that the funds debited and credited in the special blocked deposit account named .... may not be used for any other purpose but the payment of the Supplies subject of this Contract.
e) Interest occurred in the ......account shall be in favour of .....Bank.
f) Letters of credit charges shall be paid as follows:
- charges and commissions resulting from the opening, advising, confirming, amending and negotiating of the Phosphate/Supplies Letter Of Credit incurred in ..... are for the account of the Contractor.
- all charges resulting from the opening, advising, confirming, amending and negotiating the Phosphate/Supplies Letter Of Credit incurred in ..... are for the Administration account.
g) Documents presented up to 21 days later than the Bill of Lading date but presented within the letter of credit validity are accepted.
h) Partial shipments under the Supplies Letter of Credit are allowed.
Article 7 - Starting of Execution
The receipt date of the Supplies Letter of Credit stipulated in Annex III of this Contract opened and confirmed by .....Bank in favour of the Contractor together with the receipt by the Contractor of the confirmation by ....Bank, that sufficient funds to cover Supplies Letter Of Credit are available, in accordance with the terms described in Article 6 of this Contract, shall be deemed to be the date for the Contractor to proceed with the preparation of the Supplies subject of this Contract.
Article 8 - Performance Bond
The Contractor shall open in favour of the Administration a performance bond as outlined in Annex IV of this Contract in the value of 5 % of the Contract Value within fifteen working days from the approval date by ..... Authorities of this Contract. This performance bond shall expire eighteen months after the Supplies Letter OF Credit receipt date as stipulated in Article 6 by the Contractor or after two thousand operation hours of the Supplies whichever occurs first.
Article 9 - Shipment
The Supplies, subject of this Contract, shall be shipped ex ......port not later than ....weeks after the advice date from ....Bank that the Supplies Letter Of Credit opened by ....Bank on behalf of Administration in favour of Contractor, as stipulated in Article 6 of this Contract, is fully covered and workable. The Ocean Bill of Lading date shall be considered to be the delivery date.
The Contractor shall not be liable for any delays caused by the non or delayed receipt of forwarding instructions from the Administration's forwarder, or letter of credit amendment formalities in case the letter of credit is not issued in strict accordance with Article 6 of this Contract.
Not later than 20 days from the date of the approval of this Contract, the Contractor shall indicate to the Administration the approximate tonage of phosphate to be taken per month.
Not later than 10 days from the receipt of the phosphate shipping programme given by the Contractor to the Administration as per paragraph 3 of this Article 9, the Administration shall agree on the detailed phosphate delivery conditions which shall be binding for both parties. In case the Administration does not agree on the shipping programme proposed by Contractor, the Administration has to submit their new proposal for approval in writing to the Contractor within the same ten days.
Article 10 - Modification of Contract
The Administration shall have the right to increase the quantity of Supplies by a percentage not exeeding 25 % of the total Contract Value with the same prices and conditions of this Contract.
The Contractor will accept such requests provided the Administration communicates such requests in writing to Contractor not later than two months from the approval date of this Contract.
Article 11 - Delay Penalty
1) If shipment of any of the Supplies is delayed for a reason other than as described in paragraph two below and Article 19 (force majeure), Contractor shall be liable to Administration for a per day penalty of 1-tenth of Supplies so delayed. Such penalty shall in no event exceed twenty percent of the purchese price of such delayed Supplies.
2) The Contractor assumes no obligation for shipment delays caused by failure of the Administration to sign this Contract in time and/or to complete the payment arrangement as specified, or Administration's forwarding agent's failure to issue shipping instructions in time to allow for timely performance by Contractor.
Article 12 - Shipping, Insuring, Clearing and Discharging of Supplies
1) Not later than 30 days after the approval date of this Contract the Administration shall furnish to Contractor instructions concerning marking and the name of the Administration's designated forwarder.
2) Contractor will use all reasonable efforts to comply with any instructions of Administration's forwarder, provided such instructions are in accordance with Contractor's commercial practices and the habit of the place of loading.
3) Legal title to, owership of, right to possession of and control over, and risks of loss and damage to the Supplies shall transfer from Contractor to Administration FOB vessel .....port, liner terms.
4) The Contractor shall undertake to pack the Supplies seaworthy packing according to international rules of maritime transport. The Contractor is responsible for damages incurred due to poor or insufficient packing proven by the Administration.
5) Contractor shall insure the Supplies up to FOB vessel ......liner's terms. Administration shall insure the Supplies from there on.
Article 13 - Duties, Taxes and Charges
1) All duties, taxes and charges resulting from this transaction or from the sale of the Supplies imposed by the Government of the country of export and ...... will be paid by the Contractor.
2) The Administration agrees to pay all duties, taxes and charges resulting from this transaction within ........, except the stamped duties - maximum ....% - of Contract Value, imposed on the Contractor's copy of this Contract, which shall be paid by the Contractor.
Article 14 - Assignment of Contract
The Contractor does not have the right to assign wholly or in part responsibilities of this Contract except that:
a) All training, as per Article 17 and 18, product support, warranty responsibilities and similar services, may be executed by Contractor's dealer in ......
b) The Contractor has the right to sub-contract the phosphate purchases/sales mentioned in this Contract to third parties who are specialized for such purchases/sales.
Article 15 - Patents
If any of the Supplies sold to the Administration infringes any patent, Contractor will at the option of the Administration:
a) replace the infringing Supplies with non infringing Supplies,
b) obtain the right for the Administration to use the Supplies, or
c) defend and pay any judgements based on suits brought against Administration for infringement of any patent because of the sale or use of such Supplies provided that the Administration gives Contractor prompt notice and complete control of the defence of such suit.
Article 16 - Warranty
The products are sold subject to the warranty set forth in Annex II which is attached hereto and expressely incorporated into and made part of this Contract. The Administration hereby acknowledges receipt of this warranty and accepts it as the sole and exclusive warranty by Contractor applying to the Supplies.
Article 17 - Testing of Supplies
Not later than two weeks from the arrival of the Supplies at the phosphate mines, the Administration shall inform the Contractor and Contractor's dealer in ..... about the ready date of Supplies for testing. The Contractor shall give free-of-charge to the Administration all the necessary instructions for the best operation of the Supplies. After the tests, if proved sussessful, a certificate attesting that the Supplies are in good operation and are in conformity as per this Contract and the Contractor's offer, will be signed by both parties.
Article 18 - Training and Technical Assistance
The Contractor will extend through his dealer in ..... two weeks operator and maintenance training for maximum six employees of the Administration. This training is free-of-charge for room and board within ...... for the Administration's employees sent for such training. This training will be held at the facilities of Contractor's dealer in ...
Article 19 - Force Majeure
1) Performance by Contractor and Administration of this Contract for any of its obligation is subject to strikes, lock-outs, accidents, fires, floods or other acts of God, or any other cause beyond the reasonable control of Contractor/administration. Non performance or delay in performing because of such events will absolve Contractor from any liability to the Administration and vice-versa.
2) If a dealy takes place as a consequence of force majeure, the Contractor or the Administration shall inform the other in writing by telexes confirmed by letters of the foce majeure event within fifteen days after its beginning and he shall have the right to extend the time of performance of this Contract for a period equal to the lenght of the foce majeure event. If the Contractor/Administration fails to do so, he shall loose his right for extention. Contractor shall not be liable additionally to the Administration, and vice-versa, for a delay in performance because of force majeure event which has been so notified.
3) Either party has the right to cancel this Contract without any liabilities to the other party in case a notified force majeure event lasts more than six months.
Article 20 - Sale of Spare Parts and Tools
Not later than 45 day from the receipt of a workable Supplies Letter Of Credit in favour of the Contractor the Contractor shall present through his .... dealer to the Administration a list of reccomended spare parts and tools for the Supplies together with their price list and a price list copy. The recommended spare parts will be for one year operation.
Not later than thirty days from the receipt date of the recommended spare parts and tool list and the quotation, the Administration shall place a spare parts order on the Contractor which shall be subject of a Contract amendment at that time. This Contract amendment shall stipulate the quantities, prices and delivery schedule of the spare parts and tools ordered and the total Contract Value increase.
Article 21 - Cancellation of Contract
The Administration has the right to cancel this Contract in case the delivery of the Supplies subject of this Contract are delayed by more than six calendar months or if the phosphate purchase orders are delayed by more than two months.
The Contractor has the right to cancel this Contract if the approval by the .....Authorities has not occurred within 90 days from the signature date of this Contract, and in case the ......account is not opened by .....Bank within latest 120 calendar days from the signature date of this Contract and in case committed phosphate shipments are delayed by more than 60 calendar days by fault of Administration.
In case any of the above mentioned reasons has occurred, either party wishing to cancel the Contract has to inform the other party by cable, confirmed by registered letter of their intention to cancel the Contract, stating the reason for the cancellation intent and allowing the other party 30 days to eliminate the alleged reasons for cancellation.
After thos 30 days period, cancellation of the Contract is final unless the party who initially gave notice for cancellation withdraws their notice in writing.
Article 22 - Legal References
The clauses of contracting code established by ...... and ....... Law shall be applied for any clauses omitted by this Contract.
Article 23 - Notices
The Contractor and the Administration shall be deemed responsible for all their obligations and delay penalities as soon as the specified periods in this Contract have matured, without the need by the Administration/Contractor to proceed for any arrangement. Any other notices must be made in writing to the other party.
Article 24 - Notifications
All correspondence and notifications will be considered as legally notified when they are legally deposited at the Contractor's address in ...... namely:....... The Contractor shall not have the right to change this .....address without previously notifying the Administration in writing.
Article 25 - Arbitration
Any dispute arising out of implementation or interpretation of this Contract shall be amicably settled by all necessary means. Should the parties fail to reach such an amicable arrangement, the dispute shall be referred to arbitration in accordance with the rules of the International Chamber of Commerce in Paris and its decision will be considered final.
Article 26 - Contract Language
The English version of this Contract, notwistanding translation hereof into any other language, is the admitted one for explaining these Contract clauses.
Article 27 - Coming into Force of the Contract
This Contract will come into force after approving it by the competent ..... Authorities within 60 days as from its signature. The Administration shall inform the Contractor by telex confirmed by letter within five days from the approval date of this Contract by the .....competent Authorities.
Article 28 - Contract Establishment
This Contract has been made in two originals, one for each party.
...............on ...............198....
.............................................. ......................................
.............................................. ......................................
Annex I - Contractor's offer
(omissis)
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Annex II - Contractor's Warranty
(omissis)
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Annex III - Opening of an irrevocable letter of credit
A - PHOSPHATE LETTER OF CREDIT
From and for account of : Contractor
In favour of: Administration
For an amount of: for total Contract amount
Validity of credit: 12 months from opening date
Description of goods: Dry rock phosphate
Credit payable at sight against presentation of following documents in ..........:
1) An invoice issued by the Administration and legalized by the Chamber of Commerce in his country (one original and six copies) established according to the following basis:
- The price for the rate 30.5 % P 205
- The weight shown in the Bill of Lading
2) Certificate of ..... origin (one original and two copies), stating quantity without any mention of price.
3) Certificate of weight or quantity issued by Administration and certified by General Superintendence Company, giving full details of rock phosphate delivered, normally trimmed according to scales of port of ....... In case scale or scales are damaged, the final weight will be determined by General Superintendence Company at port of ...... by calculating vessels draft after loading and a corresponding remark shall be made on the weight certificate.
4) Analysis certificate issued by Administration and certified by General Superintendence, stating full analysis of rock phosphate delivered, particularly percentage of P205 on dry basis which will be determined for calculation of final price, including granuometry size.
5) 2/3 B/L made out to order and blank endorsed, notify: ...........
6) 1/1 Captain's receipt confirming receipt of the following, which will be handed over upon arrival of vessel in port of destination to notify: (to be advised by Contractor for each vessel load) 1/3 B/L and 3 bottles of sample of phosphate.
7) 1/1 copy of the cable or telex of departure sent by the Administration to the Contractor within 1 working day after B/L date which shall include the name of the vessel, number and date of the B/L and the weight of the phosphate loaded on board of vessel. Shipment from ....., destination ......
Charter B/L acceptable.
Only entire vessel load allowed.
Please advise beneficiary adding your confirmation.
Remarks: This Phosphate Letter Of Credit is valid, provided .....Bank opens a Supplies Letter Of Credit for the same value within 15 days from the opening date of the Phosphate Letter Of Credit at ......Bank. The validity of this Supplies Letter Of Credit shall be 12 months from opening date.
B - SUPPLIES LETTER OF CREDIT
From and for account of: ............ on behalf of the Administration
In favour of: the Contractor
For an amount of: Contract amount
Validity of credit: 12 months from opening date
Description of goods: ...................
Confirming bank: .......Bank
Credit payable at sight against presentation of the following documents in ......:
1) Six commercial invoices established in the name of the Administration, three of which are originals and legalized by the Chamber of Commerce in ......
2) Certificate of origin in six copies, three of which are original and legalized by the Chamber of Commerce in .....
3) Manufacturing certificate issued by the Contractor attesting that the Supplies shipped are conform to the specifications mentioned in Contractor's offer
4) Packing and weight list in six copies
5) Complete set of clean on board ocean Bill of Lading issued to the order of Shipper, endorsed to the order of ......Bank.
Remarks: This letter of credit shall be operative upon ...... Bank advice that sufficient funds are available in the ........account in the name of ......Bank with......Bank , to cover partial or entire shipment against this credit.
Partial shipments allowed.
Documents presented up to 21 days later than the B/L date but presented within the letter of credit validity date are acceptable.
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Annex IV - Performance Bond Text
Bond to be opened by Contractor with .....Bank , trough .....Bank in favour of the Administration.
Text of bond:
"In order to allow A.B.C. Co. to contract for the supply of Contract N. ..... dated...... between A.B.C. Co. of.....and The Phophates Corp. of..... : We, the undersigned .....Bank, hereby irrevocably and independently guarantee to pay to you without delay any amount up to a total of US$....... waiving all objections and defences.
We shall effect payment under this guarantee on your first demand against presentation of the following documents:
1) A statement signed by authorised signee of your Company that:
a) contract N. ..... dated ....... has been accepted and approved by your Company,
b) A.B.C. Co. has not complied with the terms of the contract stating the reasons of non-compliance,
2) Copy of the written notice to A.B.C. Co. evidencing communication of the alleged cotract breach. This notice must be dated at least 30 calendar days before the date of claim against this guarantee.
This guarantee shall expire not later than 18 months from Supplies Letter Of Credit opening as per Article 6 of this Contract, by which date we must have received any claim by registered letter , telegram or telex. It is understood that you will return this guarantee to us on expiry or after settlement of the total amount to be claimed hereunder.
3) The general binding rules in ..... for such performance bond will be applied for this guarantee.
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Annex V - Quality and quantity control
(omissis)
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