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What legal risks did the Russian-Ukrainian war bring to foreign trade?
2022-03-01 16:52:39   来源:   评论:0 点击:

The Russian-Ukrainian war far exceeded the influence of a local war because of the involvement of Western countri
The Russian-Ukrainian war far exceeded the influence of a local war because of the involvement of Western countries such as the United States. According to the latest news, Russian warships are already waiting at the Ukrainian port of Odessa, which is the main port in Ukraine and is responsible for three-quarters of Ukraine's shipping throughput. The Joseph Schulte is still stranded in the port, and other ships have left or jumped to the port on the way; at the same time, the Western countries led by the United States have swung the stick of economic sanctions on Russia, prohibiting Russia from using dollars, euros, pounds, and yen for settlement. . Although China is far from the war, the Russian-Ukrainian war has brought some potential legal risks to China's foreign trade, which has to attract the attention of the vast number of Chinese cargo owners and the shipping and logistics industry.
 
01Whether the Russian-Ukrainian war constitutes force majeure
 
The legal consequence of force majeure is to be exempted from fulfilling obligations. Although the outbreak of the Russian-Ukrainian war was sudden, before the outbreak of the war, the tension between Russia and Ukraine had been strained through the rendering of the United States and Western countries. Therefore, the Russian-Ukrainian war Whether it can constitute force majeure depends on the specific circumstances and the provisions of different legal systems.
 
According to Article 79(1) of the United Nations Convention on Contracts for the International Sale of Goods (CISG), "A party shall not be liable for any failure to perform his obligations, if he can prove that such failure to perform is due to some event beyond his control. obstacles, and for such obstacles, there is no reason to expect him to take into account or avoid or overcome it or its consequences when concluding the contract” and Article 180 of the Civil Code of the People’s Republic of China provides that “due to force majeure Those who perform civil obligations shall not bear civil liability. If the law provides otherwise, the provisions shall be followed. Force majeure is an objective situation that cannot be foreseen, unavoidable, and insurmountable." It is usually not foreseeable that there will be a war between Russia and Ukraine. Therefore, these commercial entities can be defined as force majeure, and the party performing the obligation is exempted from performing the obligation due to the obstacle of war; At a time of deterioration, especially when Western countries such as the United States have warned of the possibility of war, and Russia has recognized the independence of the two regions of Ukraine, in this case, commercial subjects may foresee a war between Russia and Ukraine. In this case, The Russian-Ukrainian war does not meet the unforeseen constituent elements, and whether it constitutes force majeure may be controversial.
 
02The legal nature of sanctions by the United States and other Western countries
 
The application of the laws of a sovereign country can only be limited to the scope of its own country. Among the sources of law, only the legal effect of the decrees of the United Nations or the concluded international treaties is higher than the laws of the country. After the outbreak of the Russian-Ukrainian war, UN Secretary-General Guterres called on Russia to stop aggression against Ukraine, but the UN has not formed a resolution to sanction Russia, so there is no UN sanctions law that all countries need to abide by. But U.S. President Joe Biden said the U.S. would work with its allies to limit Russia’s use of dollars, euros, pounds and yen for transactions, and to ban Russia from using the Society for Worldwide Interbank Financial Telecommunication (SWIFT) international settlement system. Although the sanction laws of the United States and its allies have no legal effect on Russia and other countries, if a commercial entity conducts transactions with Russia, if the above-mentioned currencies are used for settlement, the settlement amount may be frozen by the above-mentioned countries. In the international currency settlement in December 2021, the US dollar accounted for 40.51%, the euro accounted for 36.65%, the pound accounted for 5.89%, and the yen accounted for 2.58%. The above-mentioned currency ban is bound to have a serious impact on Russia's international trade.
 
Although Russia and Ukraine intend to conduct peace talks, the war may last for a certain period of time. Through the above analysis, we give the following suggestions to the vast number of Chinese foreign trade cargo owners and international logistics enterprises.
 
1. For goods sent to Ukraine, for the contract that has been signed, it is necessary to evaluate the performance of the contract. It is recommended that both the buyer and the seller fully evaluate the current development of the war. For the goods exported from China, the goods that have not been shipped for the time being, the exporter is advised to cancel the delivery plan after negotiating with the customer, and reach an agreement with the freight forwarder and carrier; The goods should be contacted with the freight forwarder and shipping company in time, and the goods should be returned or shipped to the transit port in time, and the consent of the customer should be obtained.
 
2. For goods imported from Ukraine, the escalation of the situation may lead to fluctuations in the market prices of some commodities. It is recommended to fully assess the degree of impact, actively seek alternative goods, and communicate with downstream enterprises in a timely manner to reach new intentions and make arrangements in advance. To prevent the expansion of losses in order to cope with the shortage of goods and fluctuations in prices.
 
3. For transactions with Russian customers, import and export enterprises need to focus on assessing the legal risks of payment for goods. If the contract is settled in USD, EUR, GBP and JPY, especially the USD settlement, the import and export enterprise needs to renegotiate with the counterparty. For exporters, they should negotiate with customers to change the currency of payment, and receive payment from the buyer as a condition for payment; for importers, they should negotiate with customers to change the currency of payment, or the payee of the payment, and make it clear that the payment is The risk of freezing, the seller chooses the appropriate currency and payee.
 
4. Focus on evaluating contracts that have been signed but not yet performed with Russian customers. It is recommended that such contracts continue to be performed according to the subsequent development of the Russian-Ukrainian war. Under certain conditions, the transaction can be conducted in compliance with the regulations by changing the transaction subject.
 
5. Shipowners diverting their routes around ports and rising crude oil prices will inevitably increase pressure on nearby ports, shipping costs and shipping risks, which will exacerbate trade instability. It is suggested that the owner of the goods passing through Ukraine should keep abreast of the latest local situation, control the rights of the goods, adjust the transportation route and shipping rhythm in a timely manner, and tighten the settlement method to avoid the expansion of losses.
 
6. Encourage the use of cross-border RMB for settlement. In December 2021, the proportion of RMB settlements exceeded that of Japanese yen, accounting for 2.70% of the total international currency settlements. The Russian-Ukrainian war will inevitably result in sanctions by the United States against Russia for currency payments. It is recommended that commercial transaction entities adopt cross-border RMB for settlement.
 
7. It is recommended that international freight forwarders pay attention to the goods shipped to Ukraine in a timely manner. For the goods that have been shipped, you should contact the owner of the goods in time, track the shipping status of the goods, know in a timely manner whether the shipping vessel is heading to Ukraine as planned, and know whether the consignee can pick up the goods in time; assist the owner in handling the delivery of the goods to the transit port, or The goods are returned in time; pay close attention to the use of the container, and assist the owner to return the container as soon as possible to avoid the container being used for a long time.
 
8. It is recommended that shippers who have purchased insurance should actively communicate with the insurance company, and in the event of being unable to receive or pay the goods, report the loss to the insurance company and apply for compensation in a timely manner to reduce the occurrence of losses. It is recommended that cargo owners who have not purchased insurance actively understand the insurance company's policies and purchase insurance, and use insurance to reduce possible future risks and losses.
 
Writers: Cui Yutong, Ding Tingting

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