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This Report's is Guide to Drafting the International Sales Contract” is an essential
resource for anyone involved in the international purchase of goods or services.
This includes importers, exporters, foreign manufacturers and brokers. The report
is also extremely useful for domestic attorneys without international experience
who are called upon to draft a sales/purchase contract for clients trading
internationally.

International Sales Contract

Contracts provide the formal written understanding between buyers and sellers in
transactions for the sale and purchase of goods. In the last decade, proper
international sales contracts have become of increasing importance, even in
countries where business was traditionally done simply with a handshake.
Understanding international sales contracts is vital to anyone involved in the
cross-border sale or purchase of goods.

Abbreviations and Explanatory Notes

Conditions
Means these Standard Conditions of Contract.
Container
Means any container, trailer, transportable tank, pallet, flat rack, bolster or any
similar article used to consolidate and carry cargo.

CONTRACT

Means the Order together with these conditions and any documents attached or
referred to there in.

Contractor

Means the person firm or company detailed in the Order to whom this contract is
issued.

Cost of Warranty

The Supplier must meet all costs of an occurrence incidental to the discharge of
warranty obligations, including any packing, freight, disassembly and reassembly
costs.

Customer
Means the person at whose request or on whose behalf the Company provides the
Services.

Standard Conditions of International Sale Contract

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Dangerous Goods means
Goods which are volatile or explosive or which are or may become dangerous,
inflammable, explosive, volatile, offensive or which may become liable to damage
any property or person whatsoever.

DELIVERY

Time, Place and Manner.
Delivery of the Goods must be made at the time, place and in the manner,
specified in the Purchase Order.

LATER DELIVERY.

The Commonwealth can specify in writing a later time for delivery.

INCLUSIVE PRICE

Taxes, Duties, Imports and Extras. The price of Goods includes:

(a) All Taxes, Duties and other imposts for which the Supplier is liable;
(b) All insurance costs;
(c) All amounts payable for the use (whether in course of manufacture or usage
of goods) of patents, copyright, designs, trade marks and other intellectual
Property rights; and
(d) All charges for supply of the Goods, and no extra charges will be made for
Testing, inspecting, packing, delivery, insurance or otherwise.

Goods
Means any cargo or items which any part of any Services have been or are to be
performed and any receptacle, container, packaging or pallet or item in or on
which they are contained or with which they are stored or handled.
Government Agency
Means a government or government department or other body, a governmental
or semi-governmental or judicial person or a person (whether autonomous or
not) who is charged with the administration of a law.
LEGISLATION

Means all applicable statutes, codes of practice, regulations of any local,
statutory, public or lawfully constituted body having authority, whether in force or
subsequently enacted.








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PACKING

The Goods must be packed so as to ensure their safe delivery.


Premises

Means the location where the Services are to be performed or the Goods are to
be delivered as specified in the Order.


Price

Means the price for the Services and/or Goods detailed on the Order.

QUALITY

Free from Defects. The Goods must be free of defect in materials and
workmanship; and at least of merchantable quality.


Services

Means the services to be provided as specified in the Order and shall, where the
context so admits, include any materials articles and Goods to be supplied there
under.

SPECIAL CONDITIONS

The contract conditions include any Special Conditions, referred to in the
Purchase Order or in the Request for Tender and agreed to by the Supplier and, if
any such Special Conditions are inconsistent with these Standard Conditions, the
former will to the extent of the Inconsistency prevails.

Specifications

Means the technical and other specifications, plans, drawings, examples.

Subcontractor
Means any other person who pursuant to a contract or arrangement with any
other person (whether or not the Company) provides or agrees to provide the
Services or any part of the Services.
Supplier

Means the person, firm or company to whom the Official Order is addressed.

Temperature Controlled Goods
Means Goods which require temperature control.


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THE GOODS SUPPLIED UNDER THE CONTRACT SHALL

a) Be of good and sound design, materials and workmanship.
b) Be of suitable quality and fit for the purpose(s) for which they are supplied
under the CONTRACT.
c) Conform as to description, specification and quality with the particulars stated
in the CONTRACT.
d) Be free from any defect in title.




The UN Convention on Contracts for the International Sale of Goods
Explained.

The 1980 United Nations Convention on Contracts for the International Sale
of Goods (CISG) established a comprehensive code of legal rules regarding
contracts for international sales of goods, including the obligations of the buyer
and seller and remedies for breach of contract.

The Applicability of CISG

CISG applies to contracts of sale of goods between parties, whose places of
business are situated in different states when these states are Contracting States,
i.e. have ratified CISG.

CISG contains rules regarding the offer (the proposal for concluding a contract)
and the acceptance (indication of assent).

In international transactions, the contract usually includes transport of the goods
to the buyer.
In that case, if no particular place for delivery is determinable from the contract,
the seller's obligation consists only in handing the goods over to the first carrier
for transport to the buyer.


Passing of Risk

The passing of the risk of loss of or damage to the goods from the seller to
the buyer means that the buyer from the moment of the passing runs all
the risks and costs for the goods.

This responsibility covers for example accidents.

After the risk has passed to the buyer, loss of or damage to the goods
does not discharge him from his obligation to pay the price.

It is natural that the risk of loss of or damage to the goods is connected to
the access to the goods.
Therefore, when the contract of sale does not involve carriage of the
goods, the risk usually passes to the buyer when he takes over the goods.

When the contract of sale involves carriage of the goods, the risk during
the transport must be distributed between the seller and the buyer.
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According to the CISG regulations, the risk passes to the buyer when the
goods are handed over by the seller to the first carrier for transport to the
buyer, unless the parties have concluded an arrival or destination contract.

Thus, the passing of the risk for the goods is in general connected to the
fulfilled delivery of the goods.

In case of loss or damage, the party who is bearing the risk of the goods
in transit has the possibility to turn to the carrier and claim compensation.

This claim has to be based on the contract of carriage, since CISG is only
applicable between the buyer and the seller of the goods.

However, since carriers' liability is limited, transport insurance could be
necessary.


No Contract without All Three Essential Elements:

1. OFFER
2. ACCEPTANCE
3. CONSIDERATION

1. Offer

- Conditional promise

- Can be withdrawn before acceptance

- Can have time limit


















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2. Acceptance
- Assent to offer on its terms
- Any means ok unless specified
- Material change = counter-offer
3. Consideration
- Value exchanged
- Adequacy not an issue
- If unspecified, no contract

Special Issues with Contracts

1. Modification

- If contract exists, no modification unless all parties agree.
- Discussion, assurance, promise, expectation, reasonableness all
Insufficient.

2. Authority

- Be sure representative has authority.
- If representative says so, and is not obviously without authority, that’s
Enough.

3. Applicable Law

- Most states have equivalent law.
- Does not affect jurisdiction.

4. Arbitration/Mediation

- Anything’s better than litigation (unless it’s not).
- Very dependent upon system/personnel.


Special Issues with Contracts for Meetings


1. Their form or yours

- Rarely an option
- “Adhesion” doctrine inapplicable
- Alternative: addendum


2.”Block” vs.”Reservation”

- Standard -- facility commits to hold space if sponsor commits to
Promote use.
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- Alternative: sponsor agrees to use
- Failure to use subject to cancellation/ penalty
Provisions.

3. Cancellation

- Usually subject to conditions
- Penalties depend upon timing
- “Force Majeure” excuses cancellation

4. Attrition

- Penalties if inadequate use
- Mitigation


Contract Review


1. Warranty

- What precisely will be provided?
- Include due dates for performance
- Include standards/criteria
- Include who will perform
- Must rely for breach or leverage
- INSIST THAT IT BE DETAILED


1. Intellectual Property

- Must include:

(1) Whose providing copyrights, trademarks, mailing lists?
(2) Under what terms and
(3) Who owns what?

- For copyrights, use license (permission) or assignment (transfer) unless work-
For-hire.
- For trademarks, use license and rules

2. Payment

- Clear statement of payment terms, including schedule
- Consider payments stretched over time of performance
- Retain some amount until performance is concluded


3. Indemnification

- Vendor/provider will protect association from claims arising from
Vendor/providers’ Services.
- Usually mutual, although association rarely has much risk.
- If vendor/provider is small or poorly capitalized, consider alternatives – other
Vendors, insurance, limited engagement, closer scrutiny, acceptance of risk.

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4. Termination

- Clear statement of term and end of contract
- Doesn’t have to be equivalent
- Specify return of materials, delivery of partially-completed work, and
Relinquishment of IP whether or not there’s a dispute:
- Pro’s and con’s of arbitration/mediation
- Anticipate and address worst case


The Essential Elements of International Sales Contracts





No one contract serves as a model for all export
situations. There are, however, minimum general
requirements for an export contract, outlined
below:

Name and addresses of the parties.

State clearly and fully the parties to the contract

Product, standards and specifications

State the product name, as well as technical
names (if any); sizes in which the product is to
be supplied (if relevant); applicable national or international standards and
specifications; specific buyer requirements; and sample specifications.

Quantity

Specify units of measure in both figures and words.

Inspection

State the nature, manner and focus of the envisaged inspection, as well as the
inspection agency. A number of goods are now subject to pre-shipment inspection
by designated agencies, and foreign buyers may stipulate their own inspection
agencies and conditions for inspection.

Total value

State the total contract value in words and figures, and specify the currency.

Terms of delivery

State the delivery terms, based on one of the Incoterms 2000.
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Taxes, duties and charges.

Clarify responsibility for all taxes. The prices quoted by the seller may be
inclusive of taxes, duties, and charges. Levies in the country of importation
(if any) may be the buyer’s responsibility.

Delivery.

Specify the place of dispatch and delivery. Also state whether the period of
delivery will run from the date of the contract, from the date of notification of the
issue of an irrevocable letter of credit, or from the date of receipt of the notice of
issuance of the import licence by the seller.

Part-shipment, trans-shipment and consolidation of cargo.

State whether the parties to the contract have agreed on part-shipment or trans-
shipment. Indicate the port of trans-shipment and the number, if any, of partial
shipments agreed. If the goods are likely to be shipped under a “consolidation of
export cargos” scheme, mention this in the contract.

Packaging, labelling and marking.

Note all packaging, labelling and marking requirements in the contract.

Terms of payment:

Amount, mode and currency. When quoting different payment terms, the
exporter should specify whether the prices are based on the current rate of
exchange of in-country currency, or on the basis of another currency (such as US
dollars). Address payment terms for exchange rate fluctuations as well.

Discounts and commissions.

Specify the amount of discount or commission to be paid and by whom (by the
exporter or by the importer). Stipulate the basis of calculation of commission and
rate to be applied. Discount or commission rates may or may not be included in
the export price agreed upon by the exporter and importer.

Licenses and permits.

State whether the export transaction will require any export or import licences,
and whose responsibility and expense it will be to obtain them. Import licences
may be difficult to obtain in the buyer’s country.

Insurance.

A contract should provide for the insurance of goods against loss, damage, or
destruction during transportation. Specify the type of risk covered and the extent
of coverage.
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Documentary requirements.

Documents needed for international trade transactions fall into four categories:

– Documents for export and subsequent import of goods.
– Documents for the buyer to take delivery of the goods.
– Documents relating to payment.
– Special documents required by the nature of the goods, and conditions of sale
(e.g., certain engineering goods may involve documents relating to construction, repair
And maintenance).

Common export documents include:

• The bill of exchange;
• Commercial invoice and other invoices;
• Bill of lading or airway bill;
• Insurance policy; and
• Letter of credit.

Details pertinent to the pro-forma invoice

A complete and clear description of the goods in question.
The quantity of goods in question including the number and kinds
of Packaging involved .
The total price of the goods (and unit price where applicable).
The currency in which the goods will be sold (e.g. US dollars or …).
The likely delivery schedule and delivery terms.
The physical addresses of both the exporter (referred to as the
shipper) and importer (sometimes referred to as the consignee) .
The payment methods, for example cash in advance or L/C .
The payment terms, for example 30 days on sight.
The Incoterm to be used.
Who is responsible for the banking fees and other related costs
(Insurance and freight costs are covered by the incoterm in
question).
The exporter's banking details.
The country of origin of the goods.
The expected country of final destination.
Any freight details such as the port of loading and discharge.
Any transshipment requirements.
Any other information relevant to the order.

The Commercial Invoice

The following details need to appear in the commercial invoice:

The name of the shipper/exporter and their contact details,
including physical address.
The name of the importer/consignee and their contact details,
including Physical address.
An order number of reference to correspondence between the
supplier and importer.
A complete and clear description of the goods in question
(including Brand marks and the HS number).
The packing details unless provided in a separate packing list.
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The quantity of goods in question including the number and kinds
of Packaging involved.
The external dimensions, cubic capacity, weight, numbers and
contents of each package shipped.
The total price of the goods (and unit price where applicable)
usually Quotes as a CIF/FOB price.
The currency in which the goods will be sold (e.g. US dollars or…)
The type and amount of discount given.
The likely delivery schedule and delivery terms.
The payment methods, for example cash in advance or L/C.
The payment terms, for example 30 days on sight.
The Incoterm to be used.
Who is responsible for the banking fees and other related costs
(Insurance and freight costs are covered by the incoterm in
question).
What the freight and insurance charges are?
The exporter's banking details.
A declaration of the country of origin of the goods.
The expected country of final destination.
Any freight details such as the port of loading and discharge.
Any transshipment requirements.
Any other information relevant to the order.

Packing list

This is a formal document that itemizes quite a number of details about the
Cargo such as:

Exporter's name and contact details.
The importer's/consignee's/buyer's name, address and contact
details.
The gross, tare and net weights of the cargo.
The nature, quality and specifications of the product being
shipped.
The type of package (such as pallet, box, crate, drum, carton, etc.)
The measurements/dimensions of each package.
The number of pallets/boxes/crates/drums, etc.
The contents of each pallet or box (or other container)
The package markings, if any, as well as shipper's and buyer's
Reference numbers.

Certificates of origin

A Certificate of Origin (C/O) is required by some countries and is
Intended to certify to the importing authorities as to which
country the Products being imported were manufactured in - that
is, the C/O certifies that the imported product meets the 'Country
of Origin' requirements set by the importing country and which are
expected of their foreign Suppliers.
It may be required that the C/O include information such as local
Material and labour content.
In many cases, a statement of origin printed on company
letterhead will suffice, although the document may need to be
certified in some way.
In other instances, specific types of C/Os may be required, such as
the Generalized System of Preferences (GSP) Form A and the
Chamber of Commerce C/O.
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The list is not exhaustive

Pre-shipment inspection certificate
Certificates of health
Fumigation certificate
Phytosanitary Certificate
Environmental Permit
Certificate Of Weight
Specification List
Certificate of Surveillance or Inspection
Certificate of Analysis
Certificate of Radiation
Certificate of Hygiene
Certificate of Free Sale
Certificate of Authenticity
Certificate of Fitness for Human Consumption

Product guarantee.

Fix and specify the length of the period of guarantee.

Delay in delivery.

Define the damages due to the buyer from the seller in the event of late delivery
owing to reasons other than force majeure.

Force majeure or excuse for non-performance of contract.

Include provisions in the contract defining the circumstances which would relieve
partners of their liability for non-performance of the contract.
Such provisions are called force majeure and are intended to identify the relief
which may be available to either party to the contract should supervening
circumstances occur during the period of validity of the contract.

Remedial action.

As defaults in contractual obligations by any of the parties can occur, it is always
advisable to include in the sale or purchase contract certain specific remedial
actions.
These remedial actions should reflect the mandatory provisions of the law
applicable to the contract.

Applicable Law.

State the law of the country which is to govern the contract.

Arbitration.

Include an arbitration clause to facilitate amicable and quick settlement of
disputes or differences that may arise between the parties.

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Signature of the parties.

The signing of the contract indicates the agreement of both parties to the terms
and conditions of the contract.


INCOTERMS 2000

During the process of revision, which has taken about
two years, ICC has done its best to invite views and
responses to successive drafts from a wide-ranging
spectrum of world traders, represented as these
various sectors are on the national committees
through which ICC operates.

Indeed, it has been gratifying to see that this revision process has
attracted far more reaction from users around the world than any of the
previous revisions of Incoterms.

The result of this dialogue is Incoterms 2000, a version which when
compared with Incoterms 1990 may appear to have effected few changes.

It is clear, however, that Incoterms now enjoy worldwide recognition and
ICC has therefore decided to consolidate upon that recognition and avoid
change for its own sake.

On the other hand, serious efforts have been made to ensure that the
wording used in Incoterms 2000 clearly and accurately reflects trade
practice.
Moreover, substantive changes have been made in two areas:

• The customs clearance and payment of duty obligations under FAS and
DEQ; and
• The loading and unloading obligations under FCA.

All changes, whether substantive or formal have been made on the basis
of thorough research among users of Incoterms and particular regard has
been given to queries received since 1990 by the Panel of Incoterms
Experts, set up as an additional service to the users of Incoterms.


Incorporation of Incoterms Into the Contract of Sale.

In view of the changes made to Incoterms from time to time, it is
important to ensure that where the parties intend to incorporate.
Incoterms into their contract of sale, an express reference is always made
to the current version of Incoterms.
This may easily be overlooked when, for example, a reference has been
made to an earlier version in standard contract forms or in order forms
used by merchants.
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A failure to refer to the current version may then result in disputes as to
whether the parties intended to incorporate that version or an earlier
version as a part of their contract.
Merchants wishing to use Incoterms 2000 should therefore clearly specify
that their contract is governed by “Incoterms 2000”.

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Buyer and Seller Obligations

Incoterms groups all obligations related to a given trade term into ten
sections. Each obligation is mirrored with respect to the same subject
matter between buyer and seller.



A

The Seller Must

B

The Buyer Must

A1

Provision of Goods in
Conformity with the Contract

B1

Payment of the Price

A2

Licenses, Authorizations and
Formalities

B2

Licenses, Authorizations and
Formalities

A3

Contract of Carriage and
Insurance
(a) Contract of carriage
(b) Contract of insurance

B3

Contract of Carriage and
Insurance
(a) Contract of carriage
(b) Contract of insurance

A4

Delivery

B4

Taking Delivery

A5

Transfer of Risks

B5

Transfer of Risks

A6

Division of Costs

B6

Division of Costs

A7

Notice to the Buyer

B7

Notice to the Seller

A8

Proof of Delivery, Transport
Document or Equivalent
Electronic Message

B8

Proof of Delivery, Transport
Document or Equivalent
Electronic Message

A9

Checking - Packaging -
Marking

B9

Inspection of Goods

A10

Other Obligations

B10

Other Obligations









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dit UCP 600: Rules for Letters of Cre
The Uniform Customs and Practice for Documentary
Credits (the ‘UCP’)

By a unanimous vote of 91 to 0, the ICC Banking
Commission on 25 October, 2006 approved UCP 600.

The Uniform Customs and Practice for Documentary
Credits (the ‘UCP’) is a set of rules governing the use of
letters of credit.

It was first published by the International Chamber of Commerce in 1933
and has been revised five times since then. Commercial letters of credit
are said to be the life blood of the international trade system, and for
more than 70 years, the International Chamber of Commerce (ICC) has
operated a sound system of rules governing documentary credits
worldwide.

UCP 600 is the latest revision of the rules replacing UCP 500 which has
regulated International trade for nearly 6 years since it came into force on
1 January, 1994.
UCP 600 has heralded its arrival with a bang and is due to take effect from
1 July,2007.

Major Changes

“Reasonable time” and “without delay” have been deleted.
Banks are simply allowed 5 days to examine documents.
Assert any discrepancies (new Articles 14(b) & 16(d))
New rule regarding when addresses of applicant and beneficiary
must be as in the L/C (new Article 14(j)).
Issuing bank allowed to refuse documents and then release them.
Upon obtaining waiver of discrepancies (new Article 16(c)(iii))

Letters of Credit

1. Importer applies for Letter of Credit
2. Opening Bank sends LC, through
Correspondent or Branch, Which Advises Exporter of Receipt of LC.
3. Exporter Sends Goods and Documents to Freight Forwarder.
4. Freight Forwarder Dispatches Merchandise and Provides Documents
To the advising bank.
5. Advising Bank Forwards Documents to negotiating Bank, which Checks
Document against LC, and authorizes Payment if no discrepancies are found.
The Importer's account is debited.
6. Importer's bank gives him the documents with which he can claim the
Merchandise.



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Methods of Payment in International Trade
ECSEI explains the different methods of getting paid
and the different levels of risks involved.
Getting paid for providing goods or services is critical
for any business However, getting paid for an
international transaction can be a very different
experience from securing payment on business.

Payment Risk Ladder

It is often a good idea, during, or even before contract negotiations, to consider
where, on the diagram below, you and your customer will be comfortable in
placing yourselves.


Sources: SITPRO Financial

Documents against Payment (D/P)

Usually used where payment is expected from the buyer immediately,
otherwise known as "at sight".

This process is often referred to as "Cash against Documents".

The buyer's bank is instructed to release the exporter's documents only
when payment has been made.

Where goods have been shipped by sea freight, covered by a full set of
Bills of Lading, title is retained by the exporter until these documents are
properly released to the buyer.

Unfortunately, for airfreight items, unless the goods are consigned to the
buyer's bank no such control is available under an Air Waybill or Air
Consignment Note, as these documents are merely "movement
certificates" rather than "documents of title" (N.B. Under URC522, goods
should not be consigned to a bank without prior approval).

Similarly there is no such control available for road or rail transport.


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Documents against Acceptance (D/A)


Used where a credit period (e.g. 30/60/90 days - 'sight of document' or
from 'date of shipment') has been agreed between the exporter and
buyer.

The buyer is able to collect the documents against their undertaking to
pay on an agreed date in the future, rather than immediate payment.

The exporter's documents are usually accompanied by a "Draft" or "Bill of
Exchange" which looks something like a cheque, but is payable by (drawn
on) the buyer.

When a buyer (drawee) agrees to pay on a certain date, they sign
(accept) the draft.

It is against this acceptance that documents are released to the buyer.

Up until the point of acceptance, the exporter may retain control of the
goods, as in the D/P scenario above.

However, after acceptance, the exporter is financially exposed until the
buyer actually initiates payment through their bank.

Bills for Collection are used in certain markets (particularly Asian) to fulfil
Exchange Control Regulations.

They are a cost-effective method of evidencing a transaction for buyers,
where documents are handled (and reported) via the banking system.

Letters of Credit (L/Cs)

A Letter of Credit (also known as a
Documentary Credit ) is a bank-to-bank
commitment of payment in favour of an
exporter (the Beneficiary), guaranteeing
that payment will be made against certain
documents that, on presentation, are found
to be in compliance with terms set by the
buyer (the Applicant).
Like Bills for Collections, Letters of Credit
are governed by a set of rules from the ICC.
In this case, the document is called;
"Uniform Customs and Practice" and the latest version is document
number 600.
In short, it is known as UCP600 and, again, over 90% of the world's banks
adhere to this document.

Irrevocable:
The terms and conditions within a L/C cannot be changed without the express
Agreement of the Beneficiary. Under UCP600, revocable L/Cs are no longer
acceptable under any circumstances.


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Unconfirmed:

The payment commitment within the L/C is provided by the Applicant's issuing
Bank.

Confirmed:

If an exporter has any concerns about the circumstances which may prevent
payment being made from either the Issuing Bank or buyer's Country, the adding
of "Confirmation" moves the bank/country risk issues to the bank which adds its
confirmation (the confirming or advising bank) and notifies the DC to the
exporter.

The price of such a confirmation will obviously depend upon the level of perceived
risks to be covered.
Banks can often provide indicative pricing for confirmations prior to the arrival of
the DC, so that costs can be estimated.

Main Types of Money Transfers

SWIFT Inter-Bank Transfer:

Now firmly established as standard practice in the major trading nations.
The buyer will instruct their bank to make payment to any bank account specified
by the exporter.
Therefore, it is good practice for the exporter to include their account details on
their invoice heads.

Buyer's Cheque:

An unsatisfactory method of settlement for the exporter as it carries the risk of
dishonor upon presentation as well as the added inconvenience of being slow to
clear.
There is also the very real danger of the cheque being lost in transit as well.
A cheque is also unsatisfactory if it is in the currency of the buyer, as this will
take longer to clear and will involve additional bank charges.
Exporters should only use this method if they have an established trading history
with their customer or in cases where the profit margin has been increased to
offset cash flow problems anticipated by the delay in receiving payment.

Banker's Draft:

This is arranged by the buyer who asks their bank to raise a draft on its
corresponding bank in the exporter's country.
Provides additional security to a buyer's cheque, but they can be costly to
arrange and they do run the risk of getting lost in transit.

International Money Orders:

These are similar in nature to postal orders. They are pre-printed therefore
cheaper to obtain than a Banker's Draft, although again there is the risk of loss in
transit.
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