Autor: admadv

Najla Buhatem Maluf
Political Scientist. Lawyer.
Foreign Trade Specialist at MLAW
nabuhatemm@rmadvocacia.com.br

 

In the commercial exchange of goods it is essential to ensure legal certainty for importers and exporters, facilitating the reduction of costs and risks, based on the right-cost and the right-prevention. The first aims to verify the risks and damages arising from the legal standard, and the second aims to prevent disputes that may arise, especially in times of pandemic, caused by COVID-19.

Social isolation and other restrictions set by law 13979/20, which provides for measures to strengthen and ensure safe public health, has international coverage due to the coronavirus outbreak. Even if exceptionally and temporarily, the guidelines imposed can lead to the default of contracts, either due to a drop in companies’ revenues or due to the stoppage of services worldwide.

One setback to be highlighted in international trade is the lack of unification of contracts between countries. Each country has its peculiarities, various contractual modalities, multiplicity of documents and subjects participating in each transaction, which tend to complicate the process, influencing the competitiveness and costs of operations. Furthermore, the determination of the court of competent to adjudicate any dispute arising from these contracts is still an obstacle, due to the absence of a single global court of justice.

The conduct of proceedings arising from an international contract depends on several legal systems, and can be pursued in State Courts or by appropriate means of conflict resolution, in this case, the International Commercial Arbitration – the most advantageous and speedy way, especially in recent months, as a crucial solution to which we want. It is worth remembering that international negotiations have as their basic scope, the principle of autonomy of will, which values the freedom of the will that creates obligations.

We should consider that the contracts are based on two international legal pillars: the Vienna Convention or CISG (Convention on Contracts for the International Sale of Goods) and the INCOTERMs (International Commercial Terms), both traditional and more advantageous in foreign market negotiations. It is emphasized that all contracts must observe their peculiarities and responsibilities related to each stakeholder.

Corroborating this understanding, the renowned doctrinal professor Eliane Octaviano Martins (Maritime Law Course.2013, p.07, Vol.1):

“International negotiations should consider the complexity of the foreign market and pay attention to the logistical, operational and legal aspects, aiming in essence at the prevention of disputes and the legal certainty of the parties (right to prevention), such as the impacts on the costs and risks involved arising from the LEGAL NORMS (right-cost).”

In the development of an international business, the following steps should be considered: a) Preliminary: characterizing the planning of contractual training and the necessary procedures for the performance and partnerships that will be established; b) Negotiation / Pre-Contractual: being the manifestation of the parties by the conclusion of the contractual signature at which time the importer forwards the details of the product and the costs involved, in order to make the proposal. Based on the principle of good faith, the price list will be structured and damage measurement will be made, even if it considers periods of crisis.

That said, the proposal will be made in the proforma invoice type, the document that formalizes the negotiation between importer and exporter, including all the details and obligations of the tenderer. The letter of intent is the instrument that formalizes the proposal, containing the reasons for negotiation, the rights and obligations of each party, the term and version of the Incoterms, among other criteria that guarantee the legal certainty of the commercial transaction.

The negotiating phase will determine the transport mode that will be used, which will be decided according to the parties’ choices, with maritime transport being the most beneficial, the most competitive and strategic, besides presenting greater environmental sustainability compared to the others, which has been prioritized in recent months.

The efficiency and safety of this mode, with lower freight cost and reduction of final price, generate value to the international transport of goods, being the most appropriate and essential, especially with the drastic drop in air services.

It is impossible to think of today’s world without trade relations as an essential activity for ensuring and maintaining foreign trade, in addition to avoiding shortages. It is worth remembering that all forms, steps and modalities directly impact the time and price negotiated between importer and exporter that compose the international legal business. The current economic panorama resulting from the crisis arising from coronavirus is fully atypical, and we don’t see when it is going to end, which makes mandatory the opportunity for revisions and adaptations in all international contractual spheres.

 

Najla Buhatem Maluf
Political Scientist. Lawyer.
Foreign Trade Specialist at MLAW
nabuhatemm@rmadvocacia.com.br

 

The responsibility of the maritime agent compared to that of the foreign freight carrier was questioned by another national institution. This time, a proposal for tax collection by the Administrative Council of Tax Appeals (CARF), determining that agencies would have legitimacy to answer for infractions committed by the foreign shipowner.

It is worth noting, initially, that the foreign trade activity practiced by the maritime carrier was instituted in the early days of human history. Thus, the need for foreign shipowners to guarantee, in ports around the world, someone representing them before the local authorities of each country made the need of the maritime agent essential.

The maritime agent is requested to receive and deliver cargo, acting as agent of the foreign carrier. This has been the position most defended by the National Federation of Maritime Navigation Agencies-Fenamar, which states that as a representative they cannot be held responsible for practices that exceed the limits of their mandate.

Nevertheless, in the event of infringement by a foreign person, who should answer to the local institutions? The understanding in the Brazilian judiciary is divergent on the legitimacy of the maritime agent, stating that they have the duty to represent the shipowner in the legal sphere, or only in a conventional way.

Given the absence of a consolidated legal instrument on the matter, the agencies were concerned about the provisions of the 49th proposal of a summary of the CARF, pointing in a general way that they would answer for infractions committed in the transport of goods, including being charged for taxes, fines and other obligations, which was unacceptable for the class.

In fact, it appears that it is unreasonable to impose fines in millions of Brazilian reais on the maritime agent, who is a small local businessman, as a result of the duties of a particular individual who operates at the international level. It is inappropriate for the CARF to attribute to the agencies the role of the person responsible for all infractions committed in the transportation of goods. It would be a start and a reason for apprehension in foreign trade, generating imbalance and irreparable effects on international business.

Indeed, in view of the absence of a clear legal rule of tax liability of the “representative of the foreign carrier in Brazil”, Summary 192/TRF was issued, determining that the maritime agent is not considered responsible, nor can it be equated with the status of foreign carrier.

Ultimately, there is an urgent need to consolidate the norm to hold the carrier exclusively liable, even if the maritime agent has assumed charges that are beyond its purview. This is yet another event that shows that it is not feasible to undermine democracy with detailed and meaningless rules, having an authoritarian power in flexible times acting meticulously and intrusively in the private market.