WTO Trade In Goods And WHO Epidemic Prevention And Control Legal Measures

The new coronavirus pneumonia appeared in Wuhan in December 2019, and spread to the whole country and even other countries with the large-scale population movement during the Spring Festival in 2020. With the development of the epidemic situation, we have noticed that many trade and productive enterprises have met the situation of foreign buyers refusing to pay domestic enterprises' export payments or arrears after payment.

According to our practical experience, Chinese enterprises may be concerned with the following problems:

WTO and WHO, as well as the relevant provisions on trade in goods and outbreaks.

WHO announced the impact of the announcement on the current international trade.

Whether the epidemic situation constitutes a force majeure and whether the relevant buyer can terminate the contract on the basis of force majeure;

What are the measures that domestic export enterprises can take to deal with foreign buyers?

1. What are the relevant provisions of WTO and WHO for trade in goods and outbreaks?

1.1 WTO agreement on the implementation of sanitary and phytosanitary measures (SPS agreement)

In the WTO package, members agreed on the implementation of the agreement on sanitary and phytosanitary measures (SPS). In order to prevent unexpected and uncontrollable outbreak of trade in goods, the members of the importing countries were allowed to take temporary and necessary measures. The purpose of the agreement is to regulate the unexpected events that may endanger human life or health in the trade of goods, which is aimed at coordinating the control of goods themselves. No importing Member should take excessive measures which lack sufficient evidence, or achieve the implied purpose of trade protection. The measures adopted must be "necessary", "reasonable", "evidence" and "limited". The SPS agreement allows all measures to protect the life or health of human beings, animals and plants; instruct WTO members to formulate, adopt and implement sanitary and phytosanitary measures to minimize the impact of these measures on trade; establish a multi frame framework consisting of rules and disciplines to guide the formulation, adoption and implementation of sanitary and phytosanitary measures, minimizing their trade. The negative effects of Yi.

1.2 WHO (WHO) International Health Regulations (2005)

In 2003, SARS, or severe acute respiratory syndrome (SARS), was the first global public health emergency in twenty-first Century. Public health safety is no longer a matter of a country or region. It has become a problem of global collaboration. In order to face similar incidents again, all countries can effectively prevent and respond. The World Health Assembly amended the old regulations into the international health regulations (2005) in 2005.

The Ordinance (2005) is a binding international legal agreement applicable to 196 countries, including all Member States of the WHO. It requires all States parties to develop, strengthen and maintain their emergency core competence to respond quickly and effectively to public health emergencies of international concern. Relative to WTO, the problems WHO addresses is related to disease, health, hygiene and biological standards, not involving goods (goods trade).

1.3 the relationship between WTO and WHO

WHO does not directly stipulate international trade rules in the WTO system. International trade rules are mainly based on the SPS agreement, which stipulates that members can implement or maintain higher standards than existing international standards, guidelines or recommendations, and provide higher levels of protection for animal and plant health quarantine measures, but there must be a scientific basis. Of course, the implementation of sanitary and phytosanitary measures under the framework of WTO should not constitute arbitrary or unreasonable differential treatment, or constitute a disguised restriction on international trade.

1.4 impact of international public health emergencies (PHEIC)

The measures recommended by WHO are conditional and limited, that is, the flow of control personnel and the circulation of goods, and in what way, under what conditions, and what precautionary measures should be taken. We cannot arbitrarily and unreasonably implement restrictive measures. According to the eighteenth section of the international health regulations (2005), for the proposal issued by PHEIC, people and goods are treated differently.

Suggestions for staff include: reviewing travel history in infected areas, carrying out quarantine or other health measures for suspected infected persons, tracking suspected infections, and isolating and treating infected persons.

Suggestions for "luggage, goods, containers, vehicles, articles and parcels" include: examination of cargo manifest and route of navigation, examination of evidence of measures taken to eliminate infection or pollution when departing or crossing, and sealing up and destroying contaminated or contaminated luggage or goods under surveillance if all existing processing or operation methods are not successful. Packing, transport, goods or parcel, no departure or entry.

2, PHEIC's specific recommendations and its impact on current international trade.

In January 31, 2020, WHO held a news conference to announce that the new crown pneumonia epidemic in China constituted the international public health emergency PHEIC. WHO director general also announced that travel and trade restrictions on China were not recommended.

2.1 the validity period of PHEIC statement issued by WHO

WHO put forward that PHEIC can not only prevent or reduce the transnational transmission of disease, but also cause unnecessary interference to international trade and traffic, and cause economic losses to relevant countries and regions in order to face public health risks. In response to the interim recommendation of the 2019 new coronavirus outbreak, the director general will decide, as appropriate, to convene the meeting of the emergency committee again after three months.

2.2 the impact of WHO PHEIC statement on current international trade

(1) reject the rules of Chinese goods against WTO and WHO?

According to the existing interim recommendations issued by WHO for the new crown epidemic, we understand that no country can restrict and seal the circulation of Chinese goods with unreasonable, unfounded and arbitrary measures. The SPS agreement has a series of standards and rules that restrict the measures adopted by members of WTO for trade in goods, namely, they can not adopt import restriction measures on the basis of unreasonable standards or for any reason, which actually hinder the purpose of normal trade. Although WHO has to deal with sudden outbreaks, possible transmission of pathogens and effective prevention and control, it is slightly different from SPS. However, prevention and control of epidemic situation can not interfere with the circulation of goods trade; measures should also be taken to deal with the epidemic, not to close or reject goods.

Therefore, if a country arbitrarily denies the provisions of all Chinese goods, it is not in line with the WHO rules and the proposals advocated, which is not a reasonable response, but a closed refusal to import goods.

(2) if importers do not have laws or policies, can they directly apply the rules of WTO and WHO?

Under the WTO framework, the SPS protocol allows the implementation of measures to protect human, animal and plant life or health. Article 2.1 of the agreement stipulates that members shall have the right to take sanitary and phytosanitary measures necessary for the protection of the life or health of human beings, animals or plants, provided that such measures do not conflict with the provisions of this Agreement; in accordance with Article 2.2 of the SPS agreement, members shall ensure that any sanitary and Phytosanitary Measures shall be based on scientific principles. The measures adopted by States "shall not constitute arbitrary or unreasonable differential treatment, or constitute a disguised restriction on international trade".

Therefore, according to the SPS agreement, importing countries may implement the necessary measures to protect the life and health of human beings, animals and plants, but the measures taken should be in line with the SPS agreement and based on scientific principles, and should not be inconsistent with the provisions of the SPS agreement.

(3) the retroactivity and time limit of relevant rules.

In response to the interim recommendation of the 2019 new coronavirus outbreak, the director general will decide, as appropriate, to convene the meeting of the emergency committee again after three months.

3, whether the epidemic constitutes a force majeure, whether the relevant buyer can terminate the contract according to the force majeure?

Force majeure generally includes natural phenomena caused by natural causes (such as fires, droughts, earthquakes, windstorms, heavy snowfalls, landslides, etc.) and social phenomena caused by social causes, such as wars, disturbances, government intervention, strikes, embargoes, market conditions, etc.

As 31 provinces and municipalities in mainland China have responded to the outbreak of public health emergencies at the first stage of the outbreak, and the CCPIT has announced that it will be able to demonstrate the force majeure of the enterprises concerned, according to the general principles of the civil law and the contract law, combined with the relevant cases promulgated by the courts during the period of SARS, we believe that the current epidemic situation can be considered as " The objective situation that cannot be foreseen, unavoidable and insurmountable "may be considered as force majeure. However, whether specific application can be applied must be combined with individual cases.

3.1 force majeure legal effect

(1) the right of contract alteration and the right to rescind.

If a force majeure contract fails to perform normally, the parties concerned may change the contract through consensus. If the negotiation fails, the contents of the contract can be determined according to the custom of the transaction. If the problem can still not be solved, it can be settled through litigation or arbitration.

A) temporarily unable to perform, may be postponed by the parties concerned;

If part B fails to perform, it may continue to perform after the parties have changed the contract.

C) if the purpose of the contract can not be realized because of force majeure (such as damage to the subject matter), or when a force majeure causes delay or partial performance to affect the purpose of the contract, if the parties request to rescind the contract, the contract shall be rescind.

(2) force majeure exemption effect

According to the 117th provision of the contract law, "force majeure fails to perform the contract and is partially or totally exempt from liability under the influence of force majeure, except otherwise provided by law."

Under the Chinese law, force majeure should not be exempted from liability.

A) a force majeure event should occur during the normal performance of the contract.

If the force majeure occurs after the delay in performance of the parties and the loss of the other party, the liability can not be waiver at this time, and the party shall bear full responsibility.

B) shall be exempt from liability within the scope of force majeure.

According to force majeure exemption, force majeure must be the only reason for damage. If the parties concerned have faults in the event of damage, or after the occurrence of a force majeure event, the damage is expanded due to the fault of the parties concerned, the liability for damage caused by the parties should be incorporated according to the extent of force majeure, according to the spirit of "proportionate causes and responsibilities". Assign responsibility.

C) whether a party affected by force majeure fulfills the obligation of timely notification and provides proof of force majeure;

After the occurrence of force majeure, there will be a series of collateral obligations, one is the notification obligation, that is, due to force majeure, the other party should notify the other party in time to reduce the loss that may be caused to the other party. Two, it is the proof obligation, that is, the party who has a breach of contract due to force majeure shall provide the certificate issued by the relevant institution within a reasonable period of time, and the organ issuing the certificate may include the relevant government. An organ or a notary office.

D) whether the parties have taken timely measures to avoid the obligation of expanding losses.

If the party has an expansion effect on the occurrence of the damage, it shall not be completely exempt from liability based on force majeure.

We understand that the legal system of force majeure in different countries is different. For example, the German payment system is similar to the force majeure system in China, while the common law does not have the same provisions as the force majeure system in the continental law. However, the three legal principles similar to the force majeure system in the United States are "impossibility of rule", "commercial infeasible rules" and "contract". The rule of failure. Therefore, whether a foreign buyer can take the force majeure or similar legal system as the basis to claim that the termination of the contract due to the new crown epidemic situation needs to be judged by specific trade contracts and applicable laws.

4, what are the measures that domestic export enterprises can take to deal with foreign buyers?

Because the epidemic situation has been extended to the whole country, the implementation of the relevant epidemic control measures will bring great inconvenience to the production and operation of domestic enterprises, which may affect the performance of domestic enterprises as sellers in the relevant business contracts.

Domestic sellers can take the following measures to avoid relevant risks:

(1) learn the requirements of laws, regulations and measures for controlling domestic epidemic situation, sort out the production and operation capacity of enterprises, confirm the matching degree of upstream and downstream cooperative enterprises, arrange production plans according to the specific agreements signed business contracts, and check whether the relevant business contracts can still be fulfilled on time, and whether there is default risk.

(2) to understand the import restrictions imposed by the relevant exporting countries against the epidemic and stop sending goods to countries and regions that have already affected export commodities.

(3) if domestic enterprises are unable to continue to fulfill their business contracts due to the lack of raw materials, insufficient production capacity, limited transportation conditions or the decrees imposed by the exporting countries on the import restrictions, the domestic enterprises shall notify the buyer timely and notify the buyer of the failure to continue the performance of the epidemic situation, and attach relevant government documents (extended holidays during the Spring Festival). Notice and force majeure certificate, etc.) or other supporting documents;

(4) sort out the terms of force majeure, change of circumstances and business purpose in business contracts, and negotiate with buyers on the basis of the terms of the business contract. When the buyer proposes to be affected by the epidemic, he can not pay the goods or refuse to accept the goods, he shall claim the right to the buyer according to the agreement of the commercial contract.

(5) if the buyer claims to terminate the business contract, he may ask the buyer to provide evidence that can support his claim, including:

A) an official administrative order or document issued by the buyer's country to prohibit the receipt of goods exported from China;

B) the downstream supplier of the buyer has expressly refused to accept the goods from China, or consumers in the country of the buyer have refused to purchase the tendency to purchase Chinese goods. The buyer will continue to receive the goods involved, which will result in the loss of sales profits.

C) if the buyer maintains that an epidemic virus exists in the goods supplied by the exporters and may cause the buyer and the buyer's client to be infected, the buyer shall provide an appraisal report made by the authoritative medical institution.

(6) to maintain good communication with the buyer, and to negotiate a cooperative plan conducive to promoting long-term cooperation and common business interests.

In addition to the above suggestions, we should carefully consider the purchase intention which has not yet formally signed the business contract, and negotiate the contract terms that can reduce the negative impact of the epidemic prevention and control measures on the performance of the contract.