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Significant role of notice in international trade
Most of commercial decisions should be notified to the other party in nowadays international trade. Giving the accurate notice not only represents the enterprise good commercial reputation, but also directly determines the legal liabilities burdened by enterprise. Due to many countries are member of CISG, the topics of this article are pursuant to this convention as legal basis.
一、 Accurate notice
1. Formality: in written or by oral are both allowed. Notice in written is a stronger evidence to prove it has been given from perspective of evidence.
2. Content: expresses the content of notice clearly and accurately, for example “equipments purchased from your company had been claimed for violation of the patent right by company A”, or,” we delivered the goods to transportation company A today, please prepare well to receive the goods at port B day after tomorrow” etc.
3. Time: there are no fixed periods for most of the notice, which is requested to be given in “reasonable time”. In circumstance of fresh products or seasonal goods, notice should be given in days or even in hours, of longer quality-guarantee period products, period would be longer. If buyer didn’t give notice to the seller in reasonable time, it would resort to the buyer be deprived of the right to rely on a lack of conformity of goods or IP right violation.
二、 The circumstances of notice must be given
Circumstances of notice must be given to the other party for one party being entitled to rely on rights according to convention are buyer gives notice to seller for lack of conformity of goods, buyer claims damages to seller or requires performance by seller or reduces the price, one party declares the contract void etc.
三、 Legal effect of notice arrival
1.“Principle of sending”, which means one party fulfills his performance of notice by giving or posting it and the notice becomes effective by then in law. Whether the other party receives the notice or not doesn’t impact the effectiveness of notice. Otherwise specifies in convention, most of notice apply the rule.
2.“Principle of arrival”, which means notice becomes effective when being received by the other party. Notice is void if it has been sent but doesn’t reach the other party by any reason. Only few notices are effective by this principle, such like article 47(2)”the seller will not perform within the period so fixed” and article 48(2)(3)(4)”A notice by the seller that he will perform within a specified period of time””the buyer does not comply with the request within a reasonable time” etc.
四、 Role of lawyer
Due to the rules of international trade are combined with common law system and civil law system, according to lawyer Chen of shanghai Kingtham lawyers, only lawyer with study of both law systems and practical work is able to provide correct legal opinions. In each phase of trade, whether to give notice or not, in which form or of what content of notice, at what time to give notice, whom will burden the obligation by failing to give notice and how to avoid risk, with legal opinions of lawyer expertise on international laws the legal rights of enterprise are guaranteed to be protected.
研究生学历，上海市浦东新区律师青年联合会第三届委员会委员，中级职称。十多年法律工作，资金过亿企业法律顾问，公司运作、劳动纠纷、合同、婚姻、房地产诉讼及非诉讼有丰富的经验；曾就职于检察院担任公诉人5年。（Sherry Chen, lawyer of shanghai kingtham lawyers is member of Chinese Bar Association and the third committee of the Pudong New Area Lawyers Association w