Cross-Border Sales Toolkit: CISG Opt-Outs, Incoterms Selection, and Shipping Documents

Document type: Toolkit Practice area: Commercial — International Trade Jurisdiction: United States and international Last reviewed: 5 September 2026

Tool 1 — Governing law and CISG treatment

To exclude:

Governing Law. This Agreement, and all claims arising out of or relating to it, shall be governed by the laws of the State of [__], excluding its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to this Agreement, and the parties expressly exclude its application in its entirety.

To retain, with supplements:

Governing Law. This Agreement shall be governed by the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980), and, as to matters not governed by the Convention, by the laws of [__], excluding its conflict of laws principles.

Supplemental Terms. The parties agree as follows in respect of matters on which the Convention is silent or which they wish to vary: (a) Interest. Interest on any sum in arrears shall accrue at []% per annum, compounded [monthly], from the due date to payment. (b) Costs. In any proceeding, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs. (c) Modification. This Agreement may be modified only by a writing signed by both parties, and any modification not so made shall be of no effect. (d) Notice of Non-Conformity. As provided in Section [], which the parties agree constitutes the reasonable time and the requisite specificity for purposes of Articles 38 and 39. (e) Excuse. Section [__] (Force Majeure) shall apply in lieu of Article 79, and shall govern the consequences of any impediment to performance.

Annotations.

• The exclusion must name the Convention. A choice of a US state's law selects it; the Convention is part of that state's law for a contract within its scope.
• Clause (b) is necessary because Zapata Hermanos holds that "loss" under the Convention does not include attorneys' fees.
• Clause (c) is given effect under the Convention, unlike under some domestic laws.
• Clause (e) is the important one. The Convention's excuse provision excuses damages only and leaves the counterparty free to avoid; an express force majeure clause governing the consequences is materially better for both.

Tool 2 — Incoterms selection matrix

The two distinctions that matter most:

1. C-terms split cost from risk. Under CPT, CIP, CFR, and CIF the seller pays freight to the destination but risk passes at origin. Parties routinely assume the payer of freight bears the risk. It does not.
2. FOB is a maritime term whose delivery point is the ship's rail. For containerized cargo, FCA is the correct term, because the seller loses control at the terminal days before loading.

The delivery clause:

Delivery. Seller shall deliver the Goods FCA [full address of the named place], [country] (Incoterms® 2020). Risk of loss and damage passes to Buyer upon delivery in accordance with such term. Seller shall provide Buyer with [the transport document specified in Section __] and shall notify Buyer of dispatch within [24] hours, providing [container numbers, seal numbers, and the estimated time of arrival].

[For a documentary credit sale under FCA:] Buyer shall instruct the carrier to issue to Seller a transport document stating that the Goods have been loaded on board, and Seller shall be entitled to present such document under the Credit.

Annotation. The final paragraph solves the recurring problem of an FCA sale into a documentary credit requiring an on-board bill of lading — the seller delivers before loading and therefore cannot obtain the on-board notation without the buyer's cooperation.

Tool 3 — Insurance clause

Where the seller insures (CIF or CIP):

Insurance. Seller shall, at its own cost, procure cargo insurance covering the Goods from [the delivery point] to [the destination], on Institute Cargo Clauses (A) or equivalent all-risks terms, together with Institute War Clauses and Institute Strikes Clauses, for an amount equal to 110% of the invoice value of the Goods, in the currency of this Agreement, with Buyer named as the assured or the policy duly assigned to Buyer, and with an insurer of good repute acceptable to Buyer. Seller shall provide the policy or certificate with the shipping documents. The deductible, if any, shall not exceed $[__] and shall be for Seller's account.

Where the buyer insures (all other terms):

Insurance. Buyer shall, at its own cost, procure and maintain cargo insurance covering the Goods from the point at which risk passes under the delivery term, on all-risks terms, for not less than the invoice value, and shall provide evidence on request. Seller shall have no obligation to insure the Goods after risk has passed.

Annotations.

• CIF requires only minimum cover unless the parties agree otherwise, and CIP requires all-risks. A buyer under CIF that assumes it has all-risks protection is mistaken. Specify.
• 110% is the market convention and is what documentary credits expect.
• War and strikes are excluded from standard cargo clauses and require extension.
• Confirm the policy covers the whole transit, including inland legs — a policy attaching at the port leaves a gap under FCA sales with an inland movement.

Tool 4 — Documentary credit reconciliation worksheet

Complete before the credit is issued. A mismatch here is the most common cause of payment delay in cross-border sales.

The three that most often mismatch: the document descriptions (an "inspection certificate" in the credit versus a "certificate of analysis" in the contract); the latest shipment date; and whether partial shipments are permitted where the contract contemplates multiple deliveries.

Tool 5 — Inspection and notice of non-conformity

Inspection at Origin. Prior to shipment, Seller shall cause the Goods to be inspected by [named independent inspector], which shall issue a certificate stating [the tests performed, the method, and the results] (the "Origin Certificate"). The Origin Certificate shall be conclusive as to conformity for purposes of payment, but shall not limit Buyer's rights under this Section.

Examination on Arrival. Buyer shall examine the Goods, or cause them to be examined, within [15] days after arrival at the Destination.

Notice of Non-Conformity. Buyer shall notify Seller of any non-conformity within [30] days after arrival, specifying in reasonable detail: (i) the nature of the non-conformity; (ii) the quantity affected, by lot or container number; (iii) the specification or requirement not met; and (iv) the method of testing or measurement employed, including sampling procedure and conditions.

Failure to Notify. Failure to give notice complying with this Section within such period shall constitute acceptance of the Goods and a waiver of any claim in respect of such non-conformity.

Latent Defects. As to any non-conformity not reasonably discoverable on the examination required above, Buyer shall give notice complying with this Section within [30] days after discovery and in any event within [12] months after arrival.

Preservation. Buyer shall preserve the affected Goods in the condition received, together with packaging and retained samples, and shall afford Seller a reasonable opportunity to inspect, for [60] days after notice.

Annotations.

• Under the Convention, the notice requirement defeats more claims than any substantive rule. Specifying the period and the required content converts a standard into a rule both parties can apply.
• Clause (iv) on testing method prevents the most common substantive dispute — two parties measuring differently and each believing the other is wrong.
• The preservation obligation protects the seller and is routinely omitted; a buyer that has consumed or returned the goods has destroyed the evidence.
• The Origin Certificate's conclusiveness for payment is what makes a documentary credit workable while preserving the buyer's claim.

Tool 6 — Nachfrist notice (additional period for performance)

[Date] — By email and courier

Re: Contract dated [__] — notice fixing an additional period for performance

Under the Contract, Seller was required to deliver [__] of the Goods conforming to the Specification on or before [date]. As of the date of this notice, Seller has [failed to deliver / delivered Goods that do not conform, as described in our notice of [date]].

Pursuant to Article 47 of the United Nations Convention on Contracts for the International Sale of Goods [or Section [__] of the Contract], Buyer hereby fixes an additional period of [30] days from the date of this notice, expiring on [date], for Seller to [deliver the Goods / deliver Goods conforming to the Specification / remedy the non-conformity by [repair / replacement]].

If Seller does not perform within such additional period, Buyer will declare the Contract avoided in respect of [the undelivered Goods / the entire Contract] and will pursue all available remedies, including damages.

Buyer reserves all rights, including its right to damages for delay notwithstanding performance within the additional period.

Annotations.

• This is the reliable route to avoidance. Litigating whether a breach was "fundamental" is uncertain; letting a Nachfrist period expire is not.
• The period must be of reasonable length relative to the goods and the circumstances. Too short and it is ineffective.
• The reservation of damages for delay is required — performance within the period cures the right to avoid, not the right to damages.
• Use the same mechanism even where the CISG has been excluded, as a contractual cure notice; it is good practice under any law.

Tool 7 — Rejection and avoidance notice

Re: Contract dated [__] — declaration of avoidance

Further to Buyer's notice of non-conformity dated [] and Buyer's notice fixing an additional period for performance dated [], which period expired on [__] without performance by Seller:

Buyer hereby declares the Contract avoided [in respect of the [] shipment / in its entirety] pursuant to [Article 49(1)(b) of the Convention / Section [] of the Contract].

Consequences. (a) Buyer is released from its obligation to pay for the affected Goods and, to the extent paid, requires restitution of $[__] together with interest at [__]% from [date]. (b) Buyer holds the affected Goods at Seller's disposal, and will preserve them at Seller's expense pending Seller's instructions, which Buyer requests within [15] days. (c) Buyer intends to procure substitute goods and will claim the difference in price together with incidental and consequential damages. (d) Buyer reserves all further rights.

Preservation. The Goods are stored at [location]. Buyer's reasonable costs of preservation to date are $[__]. If Seller does not provide instructions within [15] days, Buyer will sell the Goods in a commercially reasonable manner and account to Seller for the proceeds net of expenses.

Annotations.

• Avoidance requires a declaration, and it must be made within a reasonable time or the right is lost.
• Paragraph (b) matters: a buyer who has avoided must preserve the goods at the seller's expense, and a buyer who consumes or disposes of them undermines its own position.
• The self-help sale in the final paragraph tracks the Convention's preservation provisions and should be included, with the notice it requires.

Tool 8 — Export control, sanctions, and compliance clause

Compliance with Trade Laws.

(a) Classification. Seller shall determine and provide to Buyer the export control classification of the Goods and of any software, firmware, or technical data supplied with them, together with the applicable schedule B or tariff classification, and shall notify Buyer promptly of any change.

(b) Licences. [Seller / Buyer] shall be responsible for obtaining any export licence required in the country of origin, and [Buyer / Seller] for any import licence required in the country of destination. Each party shall provide the other with such information and documents as are reasonably required, including end-use and end-user statements.

(c) Representations. Each party represents that neither it, nor any of its directors, officers, or beneficial owners of [25]% or more, is a Restricted Party, and that it is not owned or controlled by any Restricted Party.

(d) No Re-Export. Buyer shall not, directly or indirectly, export, re-export, transfer, or divert the Goods, or any product incorporating them, to any Restricted Party, to any embargoed or sanctioned destination, or for any prohibited end use, and shall obtain equivalent undertakings from its customers.

(e) Screening. Each party shall screen the other, and the relevant consignees, carriers, and financial institutions, against applicable restricted party lists prior to each shipment.

(f) Suspension and Termination. If any licence is denied, revoked, or not obtained, or if either party becomes a Restricted Party, or if performance would violate any applicable trade law, the affected party may suspend performance immediately and either party may terminate this Agreement in respect of the affected Goods without liability, save for amounts due for Goods already delivered. Such an event shall not constitute a breach.

(g) Survival and Audit. This Section survives termination. Each party shall maintain records evidencing compliance for [five] years and shall provide them on reasonable request.

Annotation. Clause (f) is the operative one. A denied licence must be a permitted termination, not a breach — otherwise a party is liable for failing to do something it may not lawfully do. And clause (e)'s re-screening obligation matters in framework arrangements, where a counterparty clear at signing may not be at the third shipment.

Tool 9 — Force majeure

Force Majeure. Neither party shall be liable for any failure or delay in performance (other than a payment obligation) to the extent caused by an event beyond its reasonable control that it could not reasonably have foreseen at the date of this Agreement and could not reasonably have avoided or overcome, including act of God, flood, earthquake, fire, epidemic, war, armed conflict, terrorism, civil disturbance, act of government, embargo, closure of ports or transport routes, or general labour disturbance not confined to the affected party's workforce (a "Force Majeure Event").

Excluded. A Force Majeure Event does not include: a party's own financial condition; an increase in the cost of performance; the failure of a supplier or subcontractor, unless such failure is itself caused by a Force Majeure Event and the affected party cannot obtain substitute supply on commercially reasonable terms; or any event the affected party could have prevented by reasonable precautions.

Notice. The affected party shall notify the other within [5] days of becoming aware, describing the event, its effect, and the expected duration, and shall provide updates at intervals of not more than [15] days. Failure to give timely notice limits relief to the period after notice is given.

Effect. Performance is suspended for the duration. Each party shall use reasonable efforts to mitigate and to resume. Where the Goods are in short supply, Seller shall allocate available supply among its customers on a fair and reasonable basis, taking into account contractual commitments.

Termination. If a Force Majeure Event continues for more than [60] consecutive days, either party may terminate this Agreement in respect of the affected performance on notice, without liability, and Buyer shall pay for Goods delivered.

This Section applies in lieu of Article 79 of the Convention.

Annotations.

• The final sentence matters where the CISG governs. Its excuse provision excuses damages only and leaves the counterparty free to avoid; this clause governs the consequences instead.
• The allocation provision is what a buyer of a critical input should insist on, and what a seller with several customers needs.
• The notice requirement's consequence — relief limited to the period after notice — is a proportionate sanction that keeps the clause honest.

Tool 10 — Order of precedence and dispute resolution

Order of precedence (framework arrangements):

Order of Precedence. This Agreement governs all purchases of Goods by Buyer from Seller. Any term contained in any purchase order, order acknowledgment, invoice, packing document, delivery note, or other document, or in any standard terms of either party, that is additional to or different from the terms of this Agreement shall be of no force or effect, whether or not objected to, unless set out in a writing signed by both parties that expressly refers to this Agreement and states an intention to amend it. Performance by either party shall not constitute assent to any such term.

Dispute resolution:

Arbitration. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination, shall be finally resolved by arbitration under the [Rules], which are deemed incorporated. The number of arbitrators shall be [one / three]. The seat of the arbitration shall be [city, country]. The language shall be English. The emergency arbitrator provisions shall apply.

Interim Relief. Nothing herein prevents either party from seeking interim or conservatory relief from any court of competent jurisdiction, and such application shall not be deemed incompatible with this Agreement or a waiver of the right to arbitrate.

Costs. The tribunal shall award the prevailing party its reasonable costs and attorneys' fees.

Annotations.

• The order of precedence clause's final sentence is the answer to the battle of the forms. Under the CISG, performance is likely to be treated as acceptance of the last document sent; this clause displaces that.
• The seat, not the venue, determines the procedural law and the supervising courts. Choose it deliberately, in a New York Convention jurisdiction with a supportive judiciary.
• Emergency arbitrator provisions matter for goods disputes, where urgent relief — an injunction against dissipation, an order preserving goods — may be needed before a tribunal is constituted.
• The costs provision is necessary under the Convention, which does not treat fees as recoverable loss.

Related documents

• International sales of goods: the CISG, Incoterms, and the contract you did not know you signed
• Contracting for a cross-border sale of goods: a practical guide
• International sale of goods contract checklist
• Using letters of credit in commercial transactions
• Award enforcement toolkit: petitions, vacatur motions, and judgment collection