(I) the drafting of the contract text When the negotiating parties on the main terms of the transaction to reach agreement, it enters the contract signing stage, naturally, raised the question of who drafted the contract text, generally speaking, the text by who drafted, who will take the initiative. Because the oral negotiation of things to form the text, there is a process, sometimes, just a word difference, the meaning is very different. The initiative of the section of the party can be based on the content of the two sides of the negotiation, carefully consider each clause written into the contract. On the other hand, the other party is unprepared, and sometimes, even after careful consideration of the terms of the contract, due to cultural differences, the understanding of the meaning of the words may be different, and it is difficult to find out what is unfavorable to them. Therefore, in the negotiation, we should pay attention to the drafting of the contract text, try our best to draft the contract text, or if we can't do that, we should draft the contract text with the other party ****. But now some foreign negotiations, often by the foreign businessmen at the beginning of a complete contract text, forcing us to discuss each clause in accordance with the content of the contract text. This practice will make us in the negotiations in an extremely passive position, on the one hand, due to the lack of preparation, easy to let the other side into some of my unfavorable terms or omission of some of the other party must assume the obligations of the provisions; on the other hand, according to one side of the pre-drafted text of the contract for negotiation, greatly limiting the negotiation strategy and skills of the party in the play, and it is difficult to the contract to make relatively large changes or additions, and even some of the other party's contract is just signed. On the other hand, negotiating on the basis of one party's pre-drafted contract text greatly limits our negotiation strategy and skills, and makes it difficult to make major changes or additions to the contract, even if some of the contract is just signed by the other party.
Additionally, if the foreign language text as the basis, there are many disadvantages to our side, not only in the translation of the content of the repeated refinement, to figure out the basic meaning of the foreign language, but also to consider the legal significance of some of the conventions of the use of the foreign language, including the word, including multiple meanings, can cause trouble, unexpected problems. Therefore, in the negotiation, we should strive to prepare a draft contract negotiation. If we negotiate on this basis, the situation will be in our favor. To draft the text of the contract, need to do a lot of work, which can be combined with the preparation of the negotiations. For example, in the preparation of the negotiation plan, the main points of the negotiation are actually the main terms of the contract. Drafting the text of the contract, not only to put forward the terms of the contract negotiated between the two sides, as well as the responsibilities and obligations of the two sides, but also our Hoon proposed terms of a comprehensive and detailed discussion and study, to make it clear which terms can not be concessions, which terms can be appropriate concessions, concessions to what extent. In this way, when the two sides on the draft contract for substantive negotiations, we have taken the initiative.
(ii) clarify the contracting qualifications of both parties to the contract contract is a legal document with legal effect. Therefore, the requirement to sign the contract on both sides must have the contracting qualifications. Otherwise, even if the contract is signed, it is invalid contract. When signing a contract, to investigate the other party's credentials, the parties should be required to provide each other with relevant legal documents to prove their legal qualifications. Generally speaking, the important negotiations, the signatory should be the chairman or general manager. Sometimes, although the specific business negotiations, appeared to sign the contract is not the above personnel, but also to check the qualifications of the signatory. Such as understanding the other party to submit the legal person issued by the formal written authorization certificate, common power of attorney, power of attorney and so on. Understand the other party's legal identity and scope of authority to ensure the legality and validity of the contract.
Review of the other party's qualifications for contracting, must be serious and serious, can not be rash. Since the implementation of the reform and opening-up policy, China's foreign trade has expanded rapidly. However, in negotiations with foreign businessmen, Hong Kong businessmen, due to blind faith in each other, rashly signed contracts, so that the phenomenon of loss and deception has occurred. Some units in order to rush the introduction, output, only by acquaintances, without any credit investigation, signed a huge amount of contracts, the results to the enterprise and the country caused major losses. Therefore, it is very important to conduct credit investigation to understand the other party's enterprise reputation and its ability to act and responsibility. In addition, do not easily believe in each other's business cards, business cards can not replace the certificate, some people's business cards off the title is very big, but in fact it is empty. Also, with foreign companies to find dealings, do not only look at the parent company's reputation and assets, in fact, the parent company is not jointly and severally liable for the subsidiary.
(C) the contract should clearly stipulate the obligations of both parties, the responsibility for breach of contract Many contracts only stipulate the main terms of the transaction between the two sides, but ignored the respective responsibilities and obligations of both parties, in particular, the responsibility for breach of contract should be borne. In this way, invariably equal to the two sides relieved of their responsibilities, hollowing out the contract or cut the binding force of the contract, there is also a situation is that some of the contract terms are written in a very vague and general, even if it is stipulated that the two sides of their respective responsibilities, obligations, but if the contract terms are not clear, but also can not be held accountable for the breach of the responsibility of the person. For example, a city in the south of China signed a contract with a Hong Kong businessman for the sale of slag. The contract only specifies that the Hong Kong businessman can pull one truck a day for one month. As there is no clear mention of the type of truck, the result of the other side of the car pulling more and more large, we know that we lose, but there is nothing we can do. If the contract text is ambiguous, ambiguous, in the implementation of the process, often controversial, tug of war, and even a lot of trouble.
For example, there is a contract that reads: "No more than 45 days after the contract comes into effect, Party B shall pay Party A a performance bond of xxx million dollars. More than two months if you fail to pay on time, the contract will be automatically invalidated." Here "two months" from which day to start counting, is the contract effective date to start counting? Or from 45 days after the effective date of the contract, it is not clear. In addition, some of the key words and phrases in the contract, we must be careful, can not be ambiguous to accommodate, sometimes only a word difference, but "lost a thousand miles". For example, a Fujian enterprise in negotiating with foreign investors in the contract performance guarantee, foreign investors require to write "in the occurrence of the recipient to take the loss of compensation, the first to obtain the approval of the supplier." To retain or cancel the "recognized" two words, the two sides debated, deadlocked for two days, and finally we convince people to make foreigners to give up the "recognized" requirements. Because, if we agree to keep the word "recognized", the supplier's bank's "Performance Guarantee" will lose any meaning. If the supplier does not recognize it, the bank that issued the Performance Bond can reject the recipient's claim. The Performance Guarantee is nothing more than a piece of paper, and becomes a form of fraudulent trust.
(4) the terms of the contract specific and detailed, coordinated and consistent contract terms are too general is also not conducive to the performance of the contract. For example, a fertilizer plant from Japan to introduce a set of fertilizer equipment, the contract has such a clause: " a pipeline using stainless steel materials ". No specific indication of the pipeline should include valves, bends, joints and so on. As a result, in the fulfillment of the contract, the Japanese side that the pipeline only refers to the pipe, we believe that includes other, but because the contract did not write, there is no way to negotiate, dry eat dumb losses. At the same time, should also pay attention to the terms of the contract can not be repeated, not to mention the contradiction.
For example, I signed a contract with a foreign enterprise, in the price of the terms of such a provision: "The above price includes the seller loaded to the cabin of all costs." And in the delivery terms and conditions of such a provision: "the buyer to bear the cost of loading 1/2, with the seller's expenses bill payment." This kind of inconsistency is most likely to be exploited.
(E) to strive for our location to hold a contract contracting or signing ceremony more important negotiations, the two sides reached an agreement on the contracting or signing of the letter held in our side to try to hold.