This article constitutes the second part of a study commenced in the preceding issue of the ICC International Court of Arbitration Bulletin, Volume 21 No. 1.

The opinions expressed here are those of the author alone. None of the bodies with which he is associated has any responsibility for those opinions or for any errors that may appear in this article.

A Chinese version of this article, prepared by Xiao Fang, can be found in the CIETAC publication Arbitration and Law, No. 124, pp. 111-127.

I. Incoterms used for contractual purposes

The Incoterms rules1 raise a number of questions with respect to contractual practice2. These questions can be divided into two categories. Firstly, some awards show that the wording used by parties in international contracts often makes it necessary to identify the Incoterms rule in question, in particular to distinguish it from other commercial terms (A). Secondly, once the Incoterms rule has been identified, consideration must be given to the way in which it is used, in order to check that this accords with the contractual arrangement provided for in the rule and with the parties' intentions (B).

A. Identifying the Incoterms rule

Whenever the parties to a contract that contains a commercial term enquire about the interpretation of that contract or the scope of their respective obligations, or whenever a judge or an arbitrator has to rule on a dispute relating to the performance of obligations affected by the commercial term stipulated by the parties, one first needs to ascertain whether that commercial term is in fact one of the Incoterms rules. This may be difficult if there is no reference to the Incoterms rules in the contract (1), or if the reference is incomplete or obscure, or appears to be incompatible with other provisions in the contract, in which case we would talk about a pathological reference (2).

1. No reference to Incoterms in the contract

Some arbitral awards mention a commercial term, which would appear from its name or description to be one of the Incoterms rules, although there is no express reference to Incoterms in the contract or the award.

In some cases, the parties or the arbitrators3 do not expressly refer to the Incoterms rules, yet the fact that they have used a code word (mot-code)4 jointly defined by ICC [Page44:] and the United Nations Economic Commission for Europe (UNECE)5 to designate an Incoterms rule makes it quite clear6 that this is a reference to Incoterms.

In other cases, the award expressly mentions an Incoterms rule, but no reference is made to Incoterms in the contract. In such cases, the arbitral tribunal's reference to Incoterms can take various forms. It may be a general reference to Incoterms and the Incoterms rules, without specifying which version is applicable.7 Or the tribunal may mention a publication about Incoterms, such as a version of the Guide to Incoterms, as distinct from the collection of Incoterms rules that ICC considers to be the only official publication. 8Sometimes, an arbitral tribunal will refer to one of the sections defining the obligations laid upon the seller or the buyer.9

Such references to Incoterms may be explained by the fact that the parties have referred to Incoterms in their oral or written submissions. The arbitral tribunal does not necessarily specify the Incoterms rule it is applying, but sometimes simply applies the obligations defined by a given term without mentioning that term by name.10

When explaining and interpreting the term used by the parties, arbitrators ruling in international trade disputes sometimes follow the meaning of that term given in the official version of the Incoterms rule but without actually mentioning the latter11, and at other times depart from the literal text of the Incoterms rules.12

Parties and arbitrators in international trade sometimes characterize a commercial term as an Incoterms rule on the basis of the fact that the parties have entered into an arbitration agreement referring all disputes relating to the contract in which the commercial term is found to ICC arbitration.13

Although Incoterms rules are not always expressly mentioned in contracts, when they are the reference may not be unambiguous.

2. Pathological references to Incoterms

One source of practical difficulties frequently illustrated in the arbitral awards studied is the disregard of the instructions given by ICC on how to implement the Incoterms rules. [Page45:]

Ever since 1936, when the first version of the Incoterms rules was promulgated, ICC has recommended that international traders who wish to make a legal operation subject to the Incoterms rules should include an explicit reference to those rules in their contract, using the technique known as 'incorporation by reference'. Although users are periodically reminded of this, both by ICC in the successive versions of its Incoterms rules and by commentators, the Incoterms rules are not always applied consistently and in conformity with the requirements set out by ICC.

Often, the Incoterms rule is correctly incorporated into a contract but no indication is given of which version of the rules is applicable (identified by the year in which they were launched). The date on which the contract was made could lead to the assumption that the parties intended their contract to be subject to the version of the rules in force on that date. However, if a new version of the Incoterms was launched just before the contract was made, there is reason to doubt that the parties wished that version to be adopted, especially if it had not yet been translated into the languages used by the parties or if the publication containing that version of the Incoterms was not yet on sale in a country where one of the parties was established. An inaccurate or incomplete reference to an Incoterms rule is likely to deprive the parties of the certainty they could otherwise expect as to how the term will be interpreted in the event of a dispute. This uncertainty may however be accepted by the parties if they agree to make their contract subject to a given version of Incoterms and subsequent versions.14

If no mention is made of the applicable version of Incoterms when referring to an Incoterms rule in a contract, this does not automatically make the reference ineffective. The arbitral tribunal may sometimes be able to infer the applicable version from the details given for the term, or the wording or code word used.

In some other awards, there is unmistakably a reference to the Incoterms but the term mentioned in the contract does not appear in the list of Incoterms. The Incoterms rules are limited in number and they are listed in the official ICC publications. 15They comprise both the phrases16 and the code words referring to those phrases and the obligations they imply. [Page46:]

One difficulty arises from the fact that in practice abbreviations have sometimes been used that differ from the code word subsequently given to certain Incoterms rules, e.g. C&F, C+F or CNF for the rule 'Cost and Freight (named port of destination)'. 17In the past, the number of code words has sometimes been greater than the number of Incoterms rules due to the fact that code words were jointly assigned by UNECE and ICC to certain variants of the Incoterms rules. 18Care must therefore be taken to check whether or not a phrase or code word in fact refers to a version of the Incoterms rules. For example, one arbitral tribunal held that a reference to 'CNF FO named port (1990 Incoterms)' corresponded to the Incoterms rule Cost and Freight at the named port of destination, for which Incoterms 1990 uses the code word CFR.19

Parties sometimes make a general reference to Incoterms without specifying a particular term. Or they may mention a specific term in just one of their contractual documents. This raises the question of how to interpret the contract and the parties' intentions. In such cases, as in cases where no mention is made of the date of the applicable version of the rules or no place is named in the Incoterms phrase, it will be necessary to consider the contract as a whole when assessing whether the instructions given by ICC for applying the Incoterms rule have been complied with.20 For instance, if certain details are missing in the general sales terms, these can be covered by an appropriate provision in the special terms of the contract, or sometimes even in some of the documents annexed to it.21

Pathological references to the Incoterms rules raise a number of questions for arbitral tribunals: if the reference to the Incoterms rules is too general, does the contractual clause containing this reference become ineffective? If an Incoterms rule is incorrectly incorporated into a contract, does this render it inoperative? Should it be completed or replaced by the provisions of national law that otherwise govern the points that fall within the scope of the rule? In addition to identifying the Incoterms rule in question, issues may also arise concerning its application.

B. Application of the Incoterms rule

Arbitral awards confirm the analysis of practices described by commentators and by ICC in its publications and the answers ICC has provided to questions put to its panel of experts on Incoterms and to the Secretariat of the its Commission on Commercial Law and Practice, responsible for drafting the Incoterms rules. From a contract law perspective, the application of the Incoterms rules raises issues concerning (1) the contracts and (2) the obligations involved. [Page47:]

1. Contracts

Prior to Incoterms 2010, ICC stated that the Incoterms rules were intended to govern international sales. Since 2010, they also cover domestic sales, which the drafters of the new rules were eager to bring within their scope, as this was considered especially necessary for the USA.22

The Incoterms rules do not define what constitutes a sale. Although commentators have indicated what is to be understood by sale under the Incoterms rules23, the lack of any definition in the official ICC publication has led traders to enquire into what is covered by the legal operation we call a sale.

It should first be noted that the Incoterms rules consider a sale as a contract that entails the physical delivery, not the transfer of ownership24, of the goods sold. The question has arisen as to whether, if there is no physical transfer of the object in question but merely a book transfer, through a documentary or accounting operation 25, the Incoterms rule provided in the contract can take effect. A positive answer was given by one of the arbitral tribunals.26 Besides the transfer of ownership, the Incoterms do not deal either with the price and quantity27 of the goods sold, nor with breach of contract in general.28 They contemplate only the breach of certain obligations contained in the rules.

A distinction needs to be drawn between sales and other kinds of contracts. The Incoterms rules have, for instance, been used in rental and service contracts, leasing contracts, 29 cooperation contracts, construction contracts and letters of credit. The question that the parties' lawyers and the arbitrators will need to answer is: to which obligations or part of the contract will the Incoterms rules be applicable? If it is a mixed contract, can the Incoterms rule be applied only to that part of the contract that is subject to sales law? If the obligations likely to be governed by the Incoterms rule cannot be separated, the reference to an Incoterms rule may well prove to be of no effect.

Anyone who comes across a reference to an Incoterms rule when reading a contract should enquire into the legal nature of the contract in order to determine whether, a priori, the term mentioned can take effect. Once this has been ascertained, it will be necessary to determine what obligations the Incoterms rule is intended to govern and whether there are any inconsistencies likely to deprive the term of all or part of its effect.

2. Obligations

The awards show that when reference is made to an Incoterms rule, the parties or the arbitrators are usually seeking to define obligations relating to the delivery of goods, the moment at which the risks are transferred from the seller to the buyer, obligations [Page48:] concerning the transport of the goods,30 and costs. This is not surprising, as the chief purpose of the Incoterms rules is to define the mutual obligations of the parties to the legal operation constituted by a sale.

The legal concept of delivery is the essential component of any Incoterms rule. The transfer of the risks and costs relating to the sale are organized around this concept. The place of delivery becomes the 'critical point': the seller bears the risks and the costs relating to the goods until they reach the place of delivery. It may sometimes be difficult to determine the place of delivery if the means used for transporting the goods (e.g. an oil or gas pipeline) is not expressly mentioned by the Incoterms rules as a possible means of transport. 31 The buyer has an obligation to take delivery of the goods.32 Besides having a geographical aspect, delivery is also subject to a time factor. This factor is twofold, in that it specifies above all the moment of delivery and secondarily the period allowed for delivery.

The Incoterms rules contemplate two kinds of risks: on the one hand, those linked to the goods (partial or total loss, damage, failure to comply with obligations relating to customs clearance), 33 and on the other hand, those linked to the transport (delay 34, increase in the price of transport, etc.).35 If the delivery has not taken place, for instance because the goods have not been placed at the disposal of the buyer36 or have been refused by the buyer due to an alleged lack of conformity with the contractual specifications,37 the seller continues to bear the risks. The risks linked to the goods can be transferred only if the goods have been identified as being the contract goods and are in conformity with38 what is stipulated in the sales contract with respect both to quality and quantity.39

Another purpose of the Incoterms rules is to allocate the costs relating to a sale, e.g. those concerning the goods (delivery40, transport,41 customs clearance)42 and the obligation to render assistance and provide insurance.43

Both the awards studied and commercial practice show that the Incoterms rules are frequently regarded as defining only those obligations that relate to the price of a sale. They are often described as price clauses and included in the clause of the contract that deals with the price.44 Some parties seek to limit the role of the Incoterms rules to that of a yardstick for fixing the sales price45, and to exclude from the set of legal [Page49:] conditions established by the term the other obligations that form part of the rule in question, such as those relating to the transfer of risks.46

Awards also often note that the scope of an Incoterms rule has been exceeded. For instance, the traditional, so-called 'maritime' terms have been used for multimodal transport47 or for transporting containerized goods, which is contrary to ICC's recommendations.

Another practical difficulty is without doubt the use of the Incoterms rule stipulated in a sales contract to govern obligations arising from ancillary contracts.

A particular source of difficulty lies in the additions that contracting parties introduce into Incoterms rules.48 Contractual provisions must be interpreted in relation to each other and in accordance with the principle that special provisions derogate from general provisions (specialia generalibus derogant). Hence, arbitral tribunals will consider that any individual changes made to the texts of the Incoterms rules will override the latter.49

What one most often sees is a change to the obligations governed by the Incoterms rule, reflecting the parties' wish to make this rule more precise without necessarily departing from the Incoterms. For instance, it may be stated that a given vessel shall be used or that the chosen vessel shall take a given shipping route.50 Insurance cover can be extended either by setting the amount insured higher than the minimum cover provided in the Incoterms rules, or by taking into account certain parts of the transport not normally included in the minimum insurance obligation established by the commercial term.51 Such changes can upset the legal arrangement established by the chosen term and cause the sale to become subject to an Incoterms rule not initially contemplated by the parties to the contract.52 A typical problem, which accounts for a large part of the difficulties in applying the Incoterms rules, concerns the interpretation of the so-called 'C group' Incoterms rules. Where these rules have been specified, if the parties have placed upon the seller an obligation relating to the performance of the contract of transport in the country of destination, were they wanting to modify only the transfer of costs or also the transfer of risks?53 Another example is the opportunity agreed or alleged to have been given to the seller, whose delivery obligations are performed at the departure point, i.e. in the country of exportation, to inspect the goods at their destination to ascertain their conformity.54 These are examples of situations in which the parties have sought to alter the content of a term. Such changes are usually referred to as variants and they have been regarded variously by ICC in the different versions of the Incoterms rules. 55[Page50:]

In practice, some obligations are more often the subject of variants than others, namely those relating to the loading56 and unloading57 of goods, the taking out of insurance cover and its scope58 , and the payment of duties and taxes.59

Although there is no question that the Incoterms rules are principally used to determine the respective obligations of parties to a sales contract, they may also be used for procedural purposes by parties and arbitrators involved in international trade.

II. Incoterms used for procedural purposes

The awards we have studied show that Incoterms are often used indirectly to determine the rules of law applicable to the contract, whether by way of a general reference to the relevant ICC publication or a more specific reference to one of the Incoterms rules. In this case, the Incoterms rule is used as a criterion for fixing the applicable law, i.e. a factor that establishes a connection with the legal norm that the arbitral tribunal will apply.

We will consider decisions on the applicable law first in situations where the contract contains a reference to Incoterms (A) and second in situations where there is no such reference (B).

A. Determination of the applicable law where the contract contains a reference to Incoterms

It is not unusual to find a reference to the Incoterms rules in the choice-of-law clause,60 or in the dispute resolution clause when it covers applicable law.

In this context, Incoterms are most frequently used as substantive rules. They may be put on an equal footing with national law, and be used in addition to61 or instead of national law, as when parties choose to make their transaction subject to the principles or usages of international trade.62 Parties sometimes decide that the set of obligations provided by the Incoterms will prevail over those of the applicable national law in the event of a conflict.63 More generally, reference is made to national or treaty law (e.g. the United Nations Convention on Contracts for the International Sale of Goods), or possibly both in order of priority, to fill gaps in the contract or the Incoterms rules.64 Incoterms rules may also be applied as a back-up, provided they do not contradict the other provisions of the contract.65

A reference to Incoterms may also be used as a means of determining the applicable law. Here, arbitrators interpret the Incoterms rule as an indication of the parties' wish to make all66 or part of their contract subject to a-national rules rather than a national law. 67[Page51:]

When the arbitral tribunal decides that the law applicable to the merits of the dispute is the law at the place of the characteristic performance or at the place most closely connected to the activity of one of the parties to the sale,68 the reference to an Incoterms rule can be used to identify the applicable law. As the delivery is the central concept around which the other obligations governed by the Incoterms rules are organized, the place of delivery allows the applicable law to be identified as the law applicable at that place.69 It may be a national law or usages at the place of delivery. A reference to an Incoterms rule may lead arbitrators to decide that the parties intended international trade usages (of which the Incoterms are often regarded as the archetype)70 or other a-national norms (e.g. principles71 or customs) to be applied. Arbitral tribunals may apply such usages and norms as alternatives or together, and with or without reference to the applicable law at the place of delivery.

B. Determination of the applicable law where the contract contains no reference to Incoterms

A sales contract that does not contain any reference to an Incoterms rule or the Incoterms publication may refer to a commercial term72 or to certain obligations that are also part of an Incoterms rule. When determining the legal regime for this commercial term or these obligations, including the rule of law to which they are subject, the arbitrators sometimes make reference to the Incoterms rules.

If there is no reference to an applicable national law in the contract, or if the reference is ambiguous,73 and if the parties have not asked for the application of a national law in the course of the proceedings, arbitrators may consider that the commercial term should be regarded as an Incoterms rule and that the presence of such a rule reflects the parties' implied intention to make their contract subject to usages, customs or general principles of international trade.74

Conclusion

The awards we have studied confirm that reference to commercial terms, including the Incoterms rules, is common practice in international trade.

Our study also confirms that it is nearly always the traditional commercial terms that give rise to disputes. Thus, when parties are in dispute over the scope of their mutual obligations under an Incoterms rule, the commercial term in question is almost always a 'maritime' Incoterms rule. There may be various explanations for this. The so-called 'maritime' terms have given rise to more variants, as users have a less clear or less consistent understanding of the legal conditions they imply. The widespread use of these 'maritime' terms in model or standard documents such as model contracts and general terms of sale or purchase makes the modification and use of such terms more complicated than in the case of more recent terms. It must be acknowledged that contractual practice has evolved little here. Moreover, despite the fact that they are frequently used, these old Incoterms rules very often no longer answer the needs of international trade in today's world. [Page52:]

By contrast, the more recent Incoterms rules are less likely to give rise to disputes. These rules differ in fundamental respects from the old commercial terms. The legal conditions which these terms impose upon parties to sales contracts doubtless encourage those parties to pay more attention to ensuring that they act in compliance with the obligations laid upon them by those rules.

The questions and difficulties raised in the awards to which reference has been made should not cause readers to think that the legal security afforded by the Incoterms rules is illusory. Incoterms rules are not normally damaging to sales contracts. Only a very small number of disputes originate from the use of an Incoterms rule, and this number has been kept all the smaller thanks to the existence of a means of prevention operated for several decades by ICC, and even more so by some of its national committees, which provides interpretations of Incoterms rules. Anyone involved in international trade may request an interpretation from a panel of ICC experts, without their being any need for a dispute. The panel may then provide an opinion on how the term should be interpreted, which may defuse a situation that could otherwise develop into a dispute.



1
To ensure protection of 'Incoterms' as a registered trademark, ICC recommends that the expression 'Incoterms rules' be used and that the term should no longer be referred to as a noun. As this recommendation was published for the first time in the 2010 Incoterms brochure, the versions of the Incoterms rules prior to 2010 and the arbitral awards do not use the word 'Incoterms' as now requested by ICC. See 'Copyright notice and synopsis of trademark usage rules for Incoterms® 2010' in Incoterms® 2010, ICC Publication 715E (ICC, 2010)


2
On this subject see E. Jolivet, 'Incoterms et technique contractuelle' in C. Dehouck, ed., Incoterms & betalingstechnieken in de internationale handel (de Keure, 2007) 247; translated into Portuguese by L. Rigueira Rennó Lima, 'Incoterms e Técnica Contractual' (Jan-March 2010) 25 Revista Brasileira de Arbitragem 84.


3
E.g. case 8782 (unpublished) and the use of the code word EXW.


4
Expression taken from G. Ripert, R. Roblot & M. Germain, Traité de droit commercial, vol. 1, 15th ed. by M. Germain (LGDJ, 1993) at 33.


5
UNECE, Preamble, Abbreviations of Incoterms, Alphabetic Code for Incoterms 1953, Recommendation 5, adopted by the Working Party on the Facilitation of International Trade Procedures (Geneva, October 1974) TRADE/WP.4/INF.34, TD/B/ASTF/INF.34; Preamble, Abbreviations of Incoterms, Alphabetic Code for Incoterms 1990, Recommendation 5, adopted by the Working Party on the Facilitation of International Trade Procedures, 2d ed. (Geneva, May 1990) ECE/TRADE/171; Preamble, Abbreviations of Incoterms, Alphabetic Code for Incoterms 1990, Recommendation 5, adopted by the Working Party on the Facilitation of International Trade Procedures, 3d ed. (Geneva, January 1996) ECE/TRADE/202; Preamble, Abbreviations of Incoterms, Alphabetic Code for Incoterms 2000, Recommendation 5, adopted by the United Nations Centre for Trade Facilitation and Electronic Business, 4th ed. (Geneva, May 2000) ECE/TRADE/259.


6
There could be a doubt if the code word has been translated. Code words are based on the English expression used in the Incoterms rules, which sometimes causes parties or national authorities to translate them into their local language and even to make it a requirement that the translation be used. On this latter point, see the table of international sales conditions published in France's Journal Officiel on 24 April 2004, reproduced in Premier ministre, Commission générale de terminologie et de néologie, Vocabulaire de l'économie et des finances, enrichissement de la langue française (2006).


7
See cases 5421, 6468 and 7421.


8
See case 9532.


9
See case 6560.


10
See case 9074.


11
See case 7310


12
See Y. Derains, Comment on Case 5910, Journal du droit international 1988.1216.


13
See case 8046; contra see case 7903.


14
See cases 8838 and 10628.


15
There are 11 Incoterms rules in the 2010 and 1936 versions, 9 in the 1953 version, 14 in the 1980 version, and 13 in the 1990 and 2000 versions.


16
In the 2010 version, the list of phrases is as follows: 'Ex Works (named place of delivery)', 'Free Carrier (named place of delivery)', 'Carriage Paid to (named place of destination)', 'Carriage and Insurance Paid to (named place of destination)', 'Delivered at Terminal (named terminal at port or place of destination)', 'Delivered at Place (named place of destination)', 'Delivered Duty Paid (named place of destination)', 'Free Alongside Ship (named port of shipment)', 'Free on Board (named port of shipment)', 'Cost and Freight (named port of destination)', 'Cost, Insurance and Freight (named port of destination)', Incoterms® 2010, ICC Publication 715E (ICC, 2010) at 15, 23, 33, 41, 53, 61, 69, 79, 87, 95, 105; in the 1936 version: 'Ex Works', 'Free on Rail/Free on Truck (named departure point)', 'Free (named port of shipment)', 'Free Alongside Ship (named port of shipment)', 'Free on Board (named port of shipment)', 'Cost and Freight (named port of destination)', 'Cost, Insurance, Freight (named port of destination)', 'Freight or Carriage Paid to (named point of destination)', 'Free or Free Delivered (named point of destination)', 'Ex Ship (named port)', 'Ex Quay (named port)', Incoterms 1936, Brochure 92, 5th ed. (ICC, 1952); in the 1953 version: 'Ex Works', 'Free on Rail/Free on Truck (named departure point)', 'Free Alongside Ship (named port of shipment)', 'Free on Board (named port of shipment)', 'Cost and Freight (named port of destination)', 'Cost, Insurance, Freight (named port of destination)', 'Freight or Carriage Paid to (named point of destination)', 'Ex Ship (named port of destination)', 'Ex Quay (named port)', Incoterms 1953, ICC Publication No. 274 (ICC, 1974); in the 1980 version: 'Ex Works', 'Free on Rail/Free on Truck (named departure point)', 'Free Alongside Ship (named port of shipment)', 'Free on Board (named port of shipment)', 'Cost and Freight (named port of destination)', 'Cost, Insurance and Freight (named port of destination)', 'Ex Ship (named port of destination)', 'Ex Quay (duty paid … named port)', 'Delivered at Frontier (named place of delivery at frontier)', 'Delivered Duty Paid (named place of destination in the country of importation)', 'FOB Airport (named airport of departure)', 'Free Carrier (named point)', 'Freight/Carriage Paid to (named point of destination)', 'Freight/Carriage and Insurance Paid to (named point of destination)', Incoterms, ICC Brochure No. 350 (ICC, 1980); in the 1990 version: 'Ex Works (named place)', 'Free Carrier (named place)', 'Free Alongside Ship (named port of shipment)', 'Free on Board (named port of shipment)', 'Cost and Freight (named port of destination)', 'Cost, Insurance and Freight (named port of destination)', 'Carriage Paid to (named place of destination)', 'Carriage and Insurance Paid to (named place of destination)', 'Delivered at Frontier (named place)', 'Delivered Ex Ship (named port of destination)', 'Delivered Ex Quay (Duty Paid) (named port of destination)', 'Delivered Duty Unpaid (named place of destination)', 'Delivered Duty Paid (named place of destination)', Incoterms 1990, ICC Publication No. 460 (ICC, 1990); in the 2000 version: 'Ex Works (named place)', 'Free Carrier (named place)', 'Free Alongside Ship (named port of shipment)', 'Free on Board (named port of shipment)', 'Cost and Freight (named port of destination)', 'Cost, Insurance and Freight (named port of destination)', 'Carriage Paid to (named place of destination)', 'Carriage and Insurance Paid to (named place of destination)', 'Delivered at Frontier (named place)', 'Delivered Ex Ship (named port of destination)', 'Delivered Ex Quay (named port of destination)', 'Delivered Duty Unpaid (named place of destination)', 'Delivered Duty Paid (named place of destination)', Incoterms 2000, ICC Publication No. 560 (ICC, 1999).


17
See case 8191.


18
Two code words CFL and CIL correspond to the variants 'Cost and Freight Landed' and 'Cost, Insurance, Freight Landed' taken into account in UNECE, Working Party on the Facilitation of International Trade Procedures, Abbreviations of Incoterms, Alphabetic Code for Incoterms 1953, Recommendation 5 (Geneva, October 1974) TRADE/WP.4/INF.34, TD/B/ASTF/INF.34 at 1-2


19
See case 8191. See also case 13492.


20
See case 9074.


21
E.g. case 9237 (unpublished).


22
Incoterms® 2010, ICC Publication 715E (ICC, 2010) at 8.


23
See E. Jolivet, Les Incoterms, Etude d'une norme du commerce international, foreword by P. Fouchard, preface by D. Ferrier, Series: Bibliothèque du droit de l'entreprise, vol. 62 (Litec, 2003) at 194ff.


24
See case 13846. Some awards, however, are not devoid of inappropriate references to a transfer of ownership, see case 7310.


25
See case 9667.


26
See case 8899.


27
See case 6647.


28
See case 13674. The existence or allegation of force majeure has no effect on the set of legal obligations established by an Incoterms rule, see case 11253.


29
E.g. case 8940 (unpublished).


30
E.g. to contract transport under usual terms, see case 6560; or to reserve space on board a ship allowing fulfilment of the obligation to deliver, see case 6941.


31
See case 12004.


32
See case 11715.


33
See case 11253.


34
With regard to demurrage, see case 13492.


35
See cases 6209 and 7421.


36
E.g. case 7197 (unpublished).


37
See case 8393.


38
On the importance of certificates of conformity, especially prior to shipment, and the possibility of challenging their findings, see case 11648. For an example of a discussion on a reduction in the price of goods owing to non-conformity, see case 12355.


39
E.g. case 9187 (unpublished).


40
With regard to the obligation to provide packaging, see case 9229.


41
On the question of costs arising from the transport of live animals, see case 6468.


42
See cases 11253 and 12365.


43
See case 11715.


44
See case 8393.


45
See case 7645.


46
See case 5421.


47
See case 9773.


48
For an example of a contract changing an FOB term to a CFR term through the addition of obligations, see case 11315.


49
See case 6209.


50
E.g. case 5910 (unpublished).


51
See case 11715.


52
See case 12596.


53
See case 6209.


54
See cases 5421, 8191 and 11715.


55
The 2010 version of the Incoterms rules draws attention to the legal risk inherent in using an ambiguously worded variant, but does not prohibit the use of variants. See Incoterms® 2010, ICC Publication 715 (ICC, 2010) at 10. The variants 'C&F landed' and 'CIF landed', according to which unloading charges at the point of destination are borne by the seller, are mentioned in a footnote to the 1936 Incoterms, but no warning is given against their use (see Incoterms 1936, Brochure No. 92 (ICC, 1952) at 16 and 18. The possibility of creating variants has been recognized by the courts, e.g. French Court of Cassation, 2 October 1990, Société Sud Cargo v. Société Profilés et tubes de l'Est et autres, Bull. civ. No. 222: 'But whereas, on the one hand, the parties are free to make special stipulations that depart from the rules of a "CAF sale" and the so-called "Incoterms" rules…'. Incoterms 2000 mention certain variants - 'FOB stowed' and 'EXW loaded' - but advise parties to specify in their contracts that they have agreed to add obligations that go beyond those of the Incoterms rules (see Incoterms 2000, ICC Publication 560 (ICC, 1999) at 19 - 20.


56
See case 7879 and the stipulation 'FOB trimmed' in relation to Incoterms 1990.


57
See case 13492.


58
E.g. case 8547 (unpublished).


59
See case 7903.


60
See case 12410.


61
See cases 6647, 7310 and 12847. The fact that an Incoterms rule has been mentioned does not exempt the arbitral tribunal from determining the applicable national substantive law, see case 10228.


62
See case 8046.


63
See cases 10301 and 13674.


64
See cases 12784 and 13846.


65
See case 8838.


66
See case 10418.


67
See case 11265.


68
Case 9608 offers an example of a tribunal interpreting a clause in the contract which expressly refers to the law most closely connected to the supplier's activity.


69
See case 9608.


70
See case 7091.


71
See case 6653.


72
See case 12111.


73
E.g. the choice of 'international law' to govern a transaction made by the parties in their contract in case 12111.


74
See case 8501 and the case comment by E. Jolivet, Journal du droit international, 2001 at 1147ff.