On Dispute Precondition Clause In Export Credit Insurance

There are always different views in judicial practice and theory circles on the conflict of law application and the evaluation of the validity of dispute precondition clause of export credit insurance.It has been eight years since the Supreme People’s Court make the Reply to Issues Related to Applicable Laws of Export Credit Insurance,around the court will export credit insurance law applicable principles referred to as "contract first and consult applicable principle",but to dispute the validity of dispute precondition clause precedent evaluation on earth should be priority "the agreement" or "reference",The conflict of the application of this law has not been resolved,which also leads to many disputes on the effectiveness evaluation of dispute precondition clause and the specific application of the preconditions in commercial practice.This paper takes the Shanghai high court precedent clause dissension guidance to the applicable law conflict as the breakthrough point,combined with zhejiang,guangdong,sichuan three provincial high court and the referee from the theoretic dispute precondition clause applicable law conflict dissension thought and theory point of view,dispute precondition clause of the precedent system analysis dispute applicable law conflicts,effectiveness evaluation,Suggestions are put forward for the specific application of dispute precondition clause.The paper is divided into three parts: introduction,body and conclusion.The body is divided into the following four chapters:The first chapter of this paper is an overview of dispute precondition clause for export credit insurance.The first section is the concept of dispute precondition clause,and the actual meaning of "dispute" and "preconditions" in dispute precondition clause is clarified.The second section is the value of dispute precondition clause,and briefly analyzes the significance of the establishment of the pre-clause of dispute.The third section is the discrimination and analysis of dispute precondition clause and the loss and indemnity clause,from the function,the applicable time sequence,the position in the contract to analyze the relationship between the two.The fourth section is about the legal disputes of dispute precondition clause.It analyzes the legal disputes of dispute precondition clause from three aspects: the application of laws,the evaluation of effectiveness and the application conditions.The second chapter is the evaluation of the validity of the preconditions of export credit insurance disputes in China.The first section is based on the evaluation of the validity of the preconditions of disputes in Article 19 of the Insurance Law,which respectively explains the two situations in which the court determines that the preconditions of disputes are invalid and valid in judicial practice,and makes a theoretical analysis.The second section is based on the evaluation of the validity of the preconditions of disputes in combination with the reasonable expectation theory in Article 30 of the Insurance Law,respectively explaining the two situations in which the court determines the invalidation and validity of the preconditions of disputes in judicial practice,and making a theoretical analysis.The third section is the special agreement affecting the validity of the preconditions of disputes,and analyzes the rationality of the special agreement of "bringing a lawsuit in the place where the buyer is located" and "applying for execution in advance".The third chapter of this paper is the dispute of legal application of the preconditions of export credit insurance disputes.The first section is about the current situation of the dispute on the legal application of the preconditions of export credit insurance disputes.From the viewpoint of the dispute on the legal application of the preconditions of disputes in the theoretical circle and judicial practice of our country,the specific situation of the dispute on the legal application of the preconditions of disputes is expounded.The second section is about the reasons for the legal disputes over the application of the preconditions for disputes.It points out that the reason for the legal disputes over the application of the preconditions for disputes lies in the "particularity of export credit insurance".The third section is the reference of overseas disputes on the application of law,and analyzes the considerations of common law system and civil law system countries(regions) for disputes.The fourth section is the solutions to the legal application of the preconditions of export credit insurance disputes in China.Combined with the studies of Shanghai High People’s Court,Zhejiang,Guangdong and Sichuan High People’s Court and some scholars on this issue,the solutions are proposed.The fourth part of this paper is the suggestion of the application of the preconditions of export credit insurance disputes.The first section is the reasonable distinction of "trade disputes",and makes a reasonable distinction of "trade disputes" in the preconditions of disputes based on the unfavorable interpretation of standard clause.The second section is to prevent the superimposed application of the preconditions of dispute and the clause of loss and indemnity.On the premise of distinguishing "trade disputes",it analyzes the applicable conditions of dispute precondition clause of loss and indemnity.The third section is the special agreement on revising the impact effect evaluation,and the special agreement on "filing a lawsuit in the place where the buyer is located" and "applying for execution in advance" affecting the effect of the preconditions of the dispute is amended appropriately.The fourth section is to improve the applicable rules of law for the preliminary dispute precondition clause.Combined with the contents of Chapter II,III and IV,it clarifies the applicable rules of law for the preliminary dispute precondition clause,such as "control of the contracting process,control of the content of the contract,adverse interpretation of the standard clause".