Structure of a Typical International Commercial Contract Nonoperative

第二章 国际商事合同结构 Structure of a Typical International Commercial Contract

一 导入部分（Non-operative part） • 1合同的封面 • DATED MARCH 8，2011 • X CO. , LTD. • AND • Y CO. , LTD • LICENSE AGREEMENT

• 目录contents

• • • 4 签约日期（the date of signing of the contract） 签字日（date of execution） “订立日”(“As of” date) 生效日(effective date) 在草拟合同时, 通常日期先空出不写, 等最后一版供双方签署的时候 再写上。 • 约定合同生效日期早于签字日期：This AGREEMENT shall be effective retroactively to September 1，2010. • 与倒签合同的区别 • 约定合同生效日期晚于签字日期：This AGREEMENT shall take effect on the date of , 2010.

• 5 签约地点（ the place of signing of the contract） • 与合同适用法律的关系

• 6 合 同 当 事 方 的 名 称 （ the corporate or personal names of the parties to the contract） • 合同当事方的名称第一次在合同中出现一定要 写全称，只有在后面重复出现时才能用简称， 如甲方、乙方；买方、卖方；许可方、被许可 方。 • Hereinafter referred to as Party A or Party B； the Buyer or the Seller； the Licensor or Licensee）。

• • • Company 与corporation的区别 1 corporation规模大于Company, 但也例外: Boeing Company ; Shell Oil Company 2 company在使用上比corporation广 3 在我国, 翻译国有大企业使用corporation的居 多. 一般企业翻译成company. • 4 Inc. PLC LIC 谨慎使用.

• 7 合同当事人的地址 • 注册地址( 联系地址) • Registered office注册地 • （ paper company） British virgin Islands（英 属维京群岛） • Principal office主营业地 • （离岸公司 offshore company）

二 说明条款 • 1 鉴于条款（whereas clause） • Whereas本义是When in fact, considering that, that being the case. • 记载内容属于既定事实 • “意思表示禁反语”（estoppel by representation） • 背景条款（background）: 说明过去的情 况

• 例句： • “鉴于许可方拥有 专有技术的所有权，有权设 计、生产、安装以及进行销售； • Whereas the Licensor has the right and desires to transfer the above-signed know-how to the Licensee; • 鉴于许可方有权且愿意将以上专有技术转让 给受让方； • Whereas the Licensor possesses know-how for the designing, manufacturing, installing and marketing of ;

• 鉴于受让方愿意使用许可方的专有技术进行设 计、生产、销售以及出口 • Whereas the Licensee desires to design, manufacture, sell and export by using Licensor’s know-how. • 因此，根据以上情况及双方的意愿，经受让 方与许可方协商，达成如下合同条款 • Therefore, in consideration of the premises and the mutual conveniences, through consultation, agree to enter into this contract under the terms and conditions set forth as follows: ”

中国式的鉴于条款 • 双方本着平等互利的原则，经友好协商，同 意按照相关法律以及本合同的条款 • After friendly consultations conducted in accordance with the principles of equality and mutual benefit, the Parties have agreed to ( describe subject matter of contract) in accordance with application laws and the provisions of this Contract.

• 2 缘由recitals • recitals = whereas clause + consideration This Contract is signed in （place）on （day，month，year），by and between on one hand on the other hand。 （本合同由 为一方和 为另一方于 （时间）在 （地点）签订）。

• This contract is made in duplicate in ， ， between ， a corporation corporated under the laws of and having its Head Office and a place of business in ， party of the first part and ， a corporation having its Head Office and a place of business in ， party of the second part witnesses that： • In consideration of ， it is agreed by and between and as follows： • （本合同由 按 法律建立，并由在 设有总部和 营业地的 为甲方与在 设有总部和营业地 为乙方 在 签订，一式两份，兹协定如下： • 考虑到 ， 与 同意以下条款：

• 只要有the parties agree as follows 或we agree 就符合英美法的对价要求，不一定 要明确写上consideration.

• NOW THESE PRESENTS WITNESS that it is hereby agreed between the parties hereto as follows… • 兹特立约为据，并由订约双方协议如下

• KNOW ALL MEN by these presents that… • 有人翻译为: “地球人皆知” • 相当于说: "by posting this properly in a public place in accordance with the law it is safe for me to assume that everyone in the whole world know the following" • 根据本文件，特此宣布

• KNOW ALL MEN BY THESE PRESENTS: • This AGREEMENT, entered into by and among the following and hereunder listed, namely:

Headings • 关于合同条款使用的标题的法律效力： • 合同条款使用的标题名称仅为阅读方便而设的， 其本身不是合同协议的一部分。不影响其临近 条款或该条款规定的解释。 • The headings of the various sections and subsections hereof are for convenience of reference only, do not constitute a part hereof and shall not affect the nearing or construction of any provision hereof.

• “除从上下文理解明显带有其它意思之外， 在本合同中以下概念的意思如下：”（In this Agreement the following terms have the following meaning unless the context clearly requires otherwise：）。

• • 如“关联企业”？ 持股 50%? 25%? PRC Means the People’s Republic of China( for the purpose of this Agreement, not including the Hong Kong, Macau Special Administrative Regions and Taiwan). • 排列: • 以下简称( hereinafter referred to as )

• “本合同从中国政府批准之日起生效，合同期 限为 5年” 。 • （This Agreement comes into force on the date on which it approved by the Chinese Government and continues for five years. ） • “在合同期届满前6个月，甲方可向乙方发出书 面通知，将本合同再续期 3年” 。 • （On the expiry of the period X may continue this Agreement for further three years by six month’ prior written notice to Y）

• 例句： • Any notice， request， consent， offer or demand required or permitted to be given in this Agreement，must be in writing and must be sufficiently given if delivered in person or sent by registered airmail or by fax or telex confirmed by registered airmailed letter. • Notice is deemed to have been given on the date of mailing except the notice of change of address which is deemed to have been given when received.

终止条款（termination clause） • 所有有期限的合同都应该有个终止条款。该条 款可以规定一个期限或日期为合同自动终止。 该条款也应规定单方面提前终止的情况。 • “ This contract is valid until December 31, 2012 and will be automatically renewed for another year provided that there has been no earlier written termination of the contract by either party.

• 我国合同法第 91条：“有下列情形之一的， 合同的权利义务终止” • （In any of the following situations, the rights and obligations under a contract shall be terminated）

• (一) 债务已经按照约定履行；（liabilities have all been met as contracted） • (二) 合同解除；(the contract is dissolved) • (三) 债务相互抵消；( liabilities are offset against each other) • (四) 债务人依法将标的物提存；(the debtor has deposited the targeted matter according to law) • (五 ) 债 权 人 免 除 债 务 ； ( the creditor grants exemption from liabilities) • (六) 债权债务同归于一人；( both creditor’s rights and liabilities are undertaken by one same person) • (七 ) 法 律 规 定 或 者 当 事 人 约 定 终 止 的 其 他 情 形 。 ( other situations as provided for by law or stipulated by the parties)

• Seller may terminate this Agreement forthwith by notice in writing upon the occurrence of any of the following: • (a) if Buyer fails to obtain the approval of the appropriate Government Department to make any payment provided for by this Agreement to Seller. • (b) If any payment due under this Agreement is in arrears for sixty(60) days after formal demand. (经过催告60日以后，买方没有支付合 同规定的款项。)

• (c) If Buyer fails or becomes unable to observe or perform any of its obligations under this Agreement and such default or inability is not cured within sixty(60) days of notice of the same by Seller. • (d) If Buyer has a receiver（收益管理人） appointed over all or any part of its assets, or if any order is made or resolution passed for the winding up of Buyer unless such order or resolution is for the purpose of reconstruction or amalgamation.

• Termination of this Agreement is without prejudice to（不影响） any claim for any antecedent breach and to the right of Seller to recover compensation on all sums payable under this Agreement.

修改/变更合同的条款( amendments ) • This Agreement is not changed, modified or amended by the parties of this Agreement provided that such change, modification or amendment is in writing and signed by both parties. •

三 合同出现变更时的处理条款 • FM条款？ • 不可抗力条款（force majeure clause） • Force Majeure= superior force：extraordinary events independent of the parties`s will that cannot be foreseen or averted by them due diligence， being beyond their control and preventing the contracting party from fulfilling the obligation undertaken in the contract。

ICC FORCE MAJEURE CLAUSE 2003 • [1] Unless otherwise agreed in the contract between the parties expressly or impliedly, where a party to a contract fails to perform one or more of its contractual duties, the consequences set out in paragraphs 4 to 9 of this Clause will follow if and to the extent that party proves: • that its failure to perform was caused by an impediment beyond its reasonable control; and • that it could not reasonably have been expected to have taken the occurrence of the impediment into account at the time of the conclusion of the contract; and • that it could not reasonably have avoided or overcome the effects of the impediment.

• [2] Where a contracting party fails to perform one or more of its contractual duties because of default by a third party whom it has engaged to perform the whole or part of the contract, the consequences set out in paragraphs 4 to 9 of this Clause will only apply to the contracting party: • if and to the extent that the contracting party establishes the requirements set out in paragraph 1 of this Clause; and • if and to the extent that the contracting party proves that the same requirements apply to the third party.

• [3] In the absence of proof to the contrary and unless otherwise agreed in the contract between the parties expressly or impliedly, a party invoking this Clause shall be presumed to have established the conditions described in paragraph 1 [a] and [b] of this Clause in case of the occurrence of one or more of the following impediments:

• • 1 war (whether declared or not), armed conflict or the serious threat of same (including but not limited to hostile attack, blockade; military embargo), hostilities, invasion, act of a foreign enemy, extensive military mobilisation; 2 civil war, riot rebellion and revolution, military or usurped power, insurrection, civil commotion or disorder, mob violence, act of civil disobedience; 3 act of terrorism, sabotage or piracy; 4 act of authority whether lawful or unlawful, compliance with any law or governmental order, rule, regulation or direction, curfew restriction, expropriation, compulsory acquisition, seizure of works, requisition, nationalisation; 5 act of God, plague, epidemic, natural disaster such as but not limited to violent storm, cyclone, typhoon, hurricane, tornado, blizzard, earthquake, volcanic activity, landslide, tidal wave, tsunami, flood, damage or destruction by lightning, drought; 6 explosion, fire, destruction of machines, equipment, factories and of any kind of installation, prolonged break-down of transport, telecommunication or electric current; 7 general labour disturbance such as but not limited to boycott, strike and lock-out, goslow, occupation of factories and premises.

• [4] A party successfully invoking this Clause is, subject to paragraph 6 below, relieved from its duty to perform its obligations under the contract from the time at which the impediment causes the failure to perform if notice thereof is given without delay or, if notice thereof is not given without delay, from the time at which notice thereof reaches the other party. • [5] A party successfully invoking this Clause is, subject to paragraph 6 below, relieved from any liability in damages or any other contractual remedy for breach of contract from the time indicated in paragraph 4.

• [6] Where the effect of the impediment or event invoked is temporary, the consequences set out under paragraphs 4 and 5 above shall apply only insofar, to the extent that and as long as the impediment or the listed event invoked impedes performance by the party invoking this Clause of its contractual duties. Where this paragraph applies, the party invoking this Clause is under an obligation to notify the other party as soon as the impediment or listed event ceases to impede performance of its contractual duties. • [7] A party invoking this Clause is under an obligation to take all reasonable means to limit the effect of the impediment or event invoked upon performance of its contractual duties.

• • [8] Where the duration of the impediment invoked under paragraph 1 of this Clause or of the listed event invoked under paragraph 3 of this Clause has the effect of substantially depriving either or both of the contracting parties of what they were reasonably entitled to expect under the contract, either party has the right to terminate the contract by notification within a reasonable period to the other party. [9] Where paragraph 8 above applies and where either contracting party has, by reason of anything done by another contracting party in the performance of the contract, derived a benefit before the termination of the contract, the party deriving such a benefit shall be under a duty to pay to the other party a sum of money equivalent to the value of such benefit.

• CISG第 79条规定： • A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences

• • • Should the occurrence of events not contemplated by the parties fundamentally alter the equilibrium of the present contract thereby placing an excessive burden on one of the parties in the performance of its contractual obligations， that party may proceed as follows： The party shall make a request for revision within a reasonable time from the moment it become aware of the event and of its effect on the economy of the present contract. The request shall indicate the grounds on which it is based. The parties shall then consult one another with a view to revising the contract an equitable basis, in order to ensure that neither party suffers excessive prejudice. The request for revision does not of itself suspend performance of the contract. If the parties fail to agree on the revision of the contract within a time-limit of 90 days of the request, the contract remains in force in accordance with its original terms.

The ICC 2003 hardship clause • • The ICC 2003 hardship clause recognizes that parties must perform their contractual obligations even if "events have rendered performance more onerous than would reasonably have been anticipate difference in result suggested by an obligation, on the one hand, to perform a contract that is "more onerous" than anticipated while, on the other hand, avoiding performance of the terms of a contract that are "excessively onerous, " might encourage the liberal use of the hardship clause by those who perceive that they made a disadvantageous bargain. The use of the hardship clause or its incorporation by reference into a contract could result in unanticipated requests for renegotiation with the ultimate threat of contract termination if renegotiation proves futile. Careful consideration of the possible consequences of the ICC 2003 hardship clause is warranted. ated at the time of the conclusion of the contract. " However, where continued performance has "become excessively onerous due to an event beyond [a party's] reasonable control which it could not reasonably have been expected to have taken into account, " the clause obligates the parties to "negotiate alternative contractual terms which reasonably allow for the consequences of the event. " Failure to agree to alternative provisions entitles the party invoking the clause to terminate the contract.

• The difference in result suggested by an obligation, on the one hand, to perform a contract that is "more onerous" than anticipated while, on the other hand, avoiding performance of the terms of a contract that are "excessively onerous, " might encourage the liberal use of the hardship clause by those who perceive that they made a disadvantageous bargain. The use of the hardship clause or its incorporation by reference into a contract could result in unanticipated requests for renegotiation with the ultimate threat of contract termination if renegotiation proves futile. Careful consideration of the possible consequences of the ICC 2003 hardship clause is warranted.

ICC HARDSHIP CLAUSE 2003 • [1] A party to a contract is bound to perform its contractual duties even if events have rendered performance more onerous than could reasonably have been anticipated at the time of the conclusion of the contract. • [2] Notwithstanding paragraph 1 of this Clause, where a party to a contract proves that: • 1 the continued performance of its contractual duties has become excessively onerous due to an event beyond its reasonable control which it could not reasonably have been expected to have taken into account at the time of the conclusion of the contract; and that • 2 it could not reasonably have avoided or overcome the event or its consequences, the parties are bound, within a reasonable time of the invocation of this Clause, to negotiate alternative contractual terms which reasonably allow for the consequences of the event.

• [3] Where paragraph 2 of this Clause applies, but where alternative contractual terms which reasonably allow for the consequences of the event are not agreed by the other party to the contract as provided in that paragraph, the party invoking this Clause is entitled to termination of the contract.

• The formation, validity and interpretation of this AGREEMENT or any dispute arising out of the performance of this AGREEMENT, shall be governed and constructed by the laws of regulations of the People’s Republic of China (PRC) which are officially published on and before the signature of this AGREEMENT. In the event that there is no such officially published law governing a particular matter relating to this AGREEMENT, reference shall be made to the relevant provision in any treaty to which the PRC is a member or signatory. If there is no such applicable treaty provision, then reference shall be made to general international practices.

“手铐条款”（handcuffs clause，限制条款） • 法律选择条款可能导致适用意想不到的后果，因此， 合同一方可能要求限制法律选择条款中的法律适用范 围，自己限定合同救济可适用手段。如： • “ The remedies agreed upon in this contract are exclusive and do not permit the parties to recur，for the enforcement of their contractual rights， to any remedies regulated outside of this contract in any statutory or non-statutory rule of the proper law of contract”。

• 我国合同法第 126条: 在中华人民共和国履行的 中外合资经营企业合同、中外合作经营企业合 同、中外合作勘探开发自然资源合同，适用中 华人民共和国法律。 • The laws of the People’s republic of China shall apply to contracts for Sino-foreign joint ventures, Sino-foreign contractual joint ventures and Sino-foreign cooperative exploration and development of natural resources, which are performed within the territory of the People’s Republic of China.

仲裁（调解）条款（arbitration and mediation clauses） • 起草仲裁条款要注意： • 1 明确规定日后如果发生纠纷双方同意提交仲 裁。这为仲裁机构受理案件提供了法律依据； 同时，也排除了法院对争议案件的管辖权。如： • All disputes arising from the execution of， or in connection with the contract shall be settlement through friendly negotiation between both parties. In case no settlement to disputes can be reached through negotiation, the disputes shall be submitted for arbitration.

• 2 明确仲裁地点、仲裁机构及所采用的仲裁程序。 • All disputes arising from the execution of， or in connection with this contract shall be settled through friendly negotiation between both parties hereto. In case no settlement to disputes can be reached through friendly negotiation, the disputes shall be submitted to the China International Economic and Trade Arbitration Commission for arbitration in accordance with the Arbitration Rules and the Procedure for the said Commission.

• 3 明确仲裁裁决的效力, 仲裁费用的承担以及一方不履行裁决的法 律后果等。 • The arbitration award shall be final and binding upon both contracting parties. Neither party shall seek recourse from a Court of Law for revising the decision. The arbitration expenses shall be borne by the losing party unless otherwise awarded by the said Arbitration Organization. Both parties shall fulfill the arbitration award in accordance with the time limit stipulated. Should one of the parties not fulfill the award after this time limit, the other party shall have the right to apply for fulfillment to court at a place of jurisdiction. In the course of arbitration, this Contract shall be continuously executed by both parties except the part of this contract which is under arbitration.

一 合同的文本数量、合同使用文字和效力（language in which the contract is to be written and its validity） • “本合同正文一式两份，分别以中文和英文书写，两种 文本具有同等效力。若对其解释产生异议，则以中文 为准”。 • （ This Contract is made out in two originals， each copy written in Chinese and English languages， both texts being equally valid. In case of any divergence of interpretation, the Chinese text shall prevail. ）

• This Agreement may be executed simultaneously in two or more counterparts. Each counterpart shall be deemed an original, and all of the counterparts together shall constitute but one and the same instrument. • 本协议文本可同时签署两份或多份副本。每一 副本应视为一份原件，所有副本一起应构成唯 一同一文件。

• • • 原件 original 副本 counterpart copy duplicate 一式双份 in duplicate 一式三份 in triplicate 一式四份 in quadruplicate 一式五份 in quintuplicate 一式六份 in sextuplicate 一式七份 in septuplicate 一式八份 in octuplicate 一式九份 in nonuplicate 一式十份 in decuplicate

二 结尾语（Attestation） • In Witness Whereof, the parties hereto have caused this Agreement to be duly executed and delivered as a deed, as of the day and year first above written. • (本合同由被授权之人, 于本序文所记载日 期, 代表双方当事人缔结之, 特此为证。 • In Testimony Whereof 以此为证 • “Intending to be legally bound”

• “本合同将在双方授权代表签字后正式生效”（ This Contract shall come into force after the signatures by the authorized representatives of both parties）。 • 例句： • In witness whereof the respective representatives have signed the present agreement and have affixed thereto their seals. ( 双方代表在本协议书签字盖章，以昭信守)。

• After this contract is signed by the duly authorized representatives of both parties， both parties shall submit the contract to their government or Board of Directors for approval. The date when the later party obtains the approval shall be taken as the effective date of the contract. Both parties shall attempt to get the contract approval within 60 days from signing and notify by telex or cable the other party of the approval which is confirmed by the following registered air-mail letter.

• 五 合同附件（Schedules， Exhibits， Appendices or Annexes） • 附件、附表可使合同正文井然有序，通俗易懂。 • Schedules（附表）可以并入合同中的附件； • exhibit可以单独编订。 • “ 本合同第 章 列出的附件为本合同不可分割的组成部 分”（The annexes as listed in Article to this Contract shall form an integral part of this Contract）。 • 设立附件是为了行文方便, 而不是贬损其法律约束力. • If there is any conflict between this CONTRACT and its APPENDICES, this CONTRACT shall prevail. •

一 “时间重要条款”( time is of the essence clause) • “ Time is of the essence in regard to the performance dates required in Paragraphs . Failure to perform on such dates will be considered a material breach of the contract, permitting the other party to terminate the agreement” • 该条款的作用是将可能被认为是微小的 错误变为实质违约。

二 最终性条款（合并条款 merger clause） • • “Parol Evidence Rule”。 This agreement sets forth the entire agreement and understanding between the parties as to the subject matter of this agreement and merges and supersedes all prior discussions，agreement， and understandings of any and every nature between them，and neither party shall be bound by any condition， definition， warranty or representation other than as expressly provided for in this agreement， or as may be on a subsequent date duly set forth in writing and signed by a duly

三 完整合同条款entire agreement • 英文合同中的完整合同条款是说明当事人关于本合同 所约定的全部事项已经悉数寄走到合同中，其余本合 同外的任何书面或口头的约定概不作数。 • Entire Agreement • This Agreement with Exhibits embodies the entire agreement and understanding between the parties hereto and supersedes all prior agreements and understandings relation to the subject matter hereof. • 完整合同 • 本协议及其附件包含本协议完整协议和磋商，取代以 前所有与本协议有关的协议和磋商。

• Entire Agreement • This agreement contains the entire understanding of the parties. It may not be changed orally. This agreement may be amended or modified only in writing that has been executed by both parties hereto.

四 可分离条款Severability • 避免合同因某个条款无效而导致整个合同无效. • Each section, part，term, and provision of this agreement shall be considered severable. If, for any reason, any section, part, term, or provision of this agreement is determined to be invalid and contrary to, or in conflict with, any existing or future law or regulation of a court or agency having valid remaining portions, sections , parts, terms, or provisions of this agreement, and the latter will continue to be given full force and effect and bind the parties to this agreement. The invalid section, part, term, or provision shall be deemed not to be a part of this agreement.

不弃权条款No Waiver • No waiver of any term, provision or condition of this Agreement, the breach or default thereof, shall be deemed to be either a continuing waiver or a waiver of a subsequent breach or default of any such term, provision or condition of this Agreement. • 对本协议任何条款，无论对条件的放弃、或对 其违约或不履行的放弃，不得视为持续性放弃， 也不视为对本协议任何违约条款规定或条件后 续违约或不履行的放弃。

作业（翻译）： • LICENSE AGREEMENT • THIS AGREEMENT，entered into in （place）on the （date）by and between X CORPORATION， a corporation organized and existing under the laws of （Country）， and having its principal office at （ Address），（hereinafter referred to as X） and • Y CORPORATION，a corporation organized and existing under the laws of （Country），and having its principal office at （address），（hereinafter referred to as Y）， •

• • WITNESSETH WHEREAS X has developed certain processes， methods and techniques applied in manufacturing the Licensed Products hereinafter defined； and WHEREAS---------------------------------------------------NOW, THEREFORE, in consideration of the premises------------------------IT IS AGREED： 1．--------------------------------------------------------2．--------------------------------------------------------3．---------------------------------------------------------

• IN WITNESS WHEREOF the parties hereto have on the day and year first above written caused these presents to be executed and delivered in their behalf and in their corporate names respectively by their proper officers hereunto duly authorized and their respective corporate seals to be hereto attached by like authority. •