《國際保理通則》（GRIF 2013）譯註（十三）：商業糾紛的處理規則

SECTION VI Disputes

第六節　商業糾紛

Article 27 Disputes

(i) A dispute occurs whenever a debtor fails to accept the goods or the invoice or raises a defence, counterclaim or set-off including (but not limited to) any defence arising from a claim to the proceeds of the receivable by any third party. However, where there is a conflict between the provisions of this Article and those of Article 25 the latter shall prevail.

(ii) Upon being notified of a dispute the Import Factor or the Export Factor shall immediately send to the other a dispute notice containing all details and information known to him regarding the receivable and the nature of such dispute. In either case the Export Factor shall provide the Import Factor with further information regarding the dispute within 60 days of the receipt by the Export Factor or his sending it as the case may be.

(iii) Upon receipt of such dispute notice the approval of that receivable shall be deemed to be suspended.

If a dispute is raised by the debtor and the dispute notice is received within 90 days after the due date of the receivable to which the dispute relates, the Import Factor shall not be required to make PUA of the amount withheld by the debtor by reason of such dispute.

If a dispute is raised by the debtor and the dispute notice is received after PUA, but within 180 days of the due date of the receivable, the Import Factor shall be entitled to reimbursement of the amount withheld by the debtor by reason of such dispute.

(iv) (a) The Export Factor shall be responsible for the settlement of the dispute and shall act continuously to ensure that it is settled as quickly as possible. The Import Factor shall co-operate with and assist the Export Factor, if so required, in the settlement of the dispute including the taking of legal proceedings.

(b) If the Import Factor declines to take such proceedings or if the Export Factor requires a reassignment of the disputed receivables so that proceedings may be taken in his or the supplier』s name, then, in either case, the Export Factor is entitled to such reassignment.

(c) Whether or not any such reassignment has been made the Import Factor shall again accept as approved, within the time limits specified in paragraph (v) of this Article, such disputed receivable to the extent that the dispute is settled in favour of the supplier (including an admission by the person responsible for the administration of the debtor』s insolvent estate) provided that:

(1) the Export Factor has complied with his obligations under paragraph (iv) a) of this Article;

(2) the Import Factor has been kept fully informed about the status of negotiations or proceedings at regular intervals; and

(3) the settlement provides for payment by the debtor to be made within 30 days of the date of the settlement, if amicable, or the date of the coming into effect of the judgement in the case of a legal settlement, provided, however, that such 30 day period shall not apply in the case of the admission of the debt by the person responsible for the administration of the debtor』s insolvent estate.

(d) For the purpose of this Article, 「legal settlement」 means a dispute settled by way of a decision of a court or other tribunal of competent jurisdiction (which, for the avoidance of doubt, shall include arbitration) provided such legal proceedings have been formally commenced by proper service of legal process or demand for arbitration prior to the term set for an amicable settlement; and 「amicable settlement」 means any settlement which is not a legal settlement.

(v) The time limits referred to in paragraph (iv) c) above, for the Import Factor to accept again as approved a disputed receivable, are as follows:

(a) in the case of an amicable settlement, 180 days: and

(b) in the case of a legal settlement, 3 years;

in each case after the receipt of the dispute notice in accordance with paragraph (ii) of this Article. If, however, during such periods, the debtor becomes officially insolvent or makes a general declaration or admission of his insolvency, the Import Factor shall remain at risk until the dispute has been settled.

(vi) In the case of a disputed receivable which the Import Factor has accepted again as approved in accordance with paragraph (iv) of this Article:

(a) if the receivable has been reassigned to the Export Factor the Import Factor shall have the right to an immediate assignment to him of all the Export Factor』s or (as the case may be) the supplier』s rights under the settlement;

(b) in every such case any PUA, which is to be made in accordance with Article 24, shall be made within 14 days of the date on which payment is to be made by the debtor according to the settlement provided that:

(1) any assignment required by the Import Factor under paragraph (vi) a) of this Article has been made effectively by the Export Factor within that period; and

(2) the end of that period of 14 days is later than the original due date for the PUA.

(vii) If the Export Factor does not comply with all his obligations under this Article and such non-compliance substantially affects the risk position of the Import Factor, then the Import Factor shall have the right to reassign to the Export Factor the disputed receivable and the Export Factor shall promptly reimburse the Import Factor with the amount of the PUA; such payment shall include interest from date of PUA to date of reimbursement as calculated in accordance with paragraph (iii) (b) of Article 26.

(viii) If the dispute is resolved in full in favour of the supplier, all related costs shall be the responsibility of the Import Factor. In all other cases the costs will be the responsibility of the Export Factor.

第二十七條　商業糾紛

1．若債務人拒絕接受貨物或發票，或提出抗辯、反索、抵銷，包括但不限於因第三方對賬款有關款項主張權利而引起的抗辯，均視為發生商業糾紛。但若本條與第二十五條發生抵觸，以第二十五條規定為準。

2．一旦獲知發生商業糾紛，進口保理商或出口保理商應立即向對方發送商業糾紛通知，該通知中應包含其所了解的有關賬款及商業糾紛性質的一切細節與信息。出口保理商應在其收到或發出商業糾紛通知後 60 日內向進口保理商提供有關商業糾紛的進一步信息。

3．在收到商業糾紛通知後，對該筆賬款的核准將被視為中止。

若商業糾紛由債務人提出，且在有爭議的賬款到期日後 90 日內收到商業糾紛通知，則不得要求進口保理商對債務人因該糾紛而拒付的款項做擔保付款。

若商業糾紛由債務人提出，且在擔保付款後、賬款到期日後 180 日內收到商業糾紛通知，則進口保理商有權索回債務人因該糾紛而拒付的款項。

4．a）出口保理商應負責解決商業糾紛，並持續努力確保其儘快得到解決。若出口保理商要求，進口保理商應配合併協助出口保理商解決商業糾紛，包括提起訴訟。

　b）若在進口保理商拒絕提起訴訟，或出口保理商要求將有爭議的賬款反轉讓以便其以自身或供應商的名義起訴的情況下，出口保理商均有權要求做反轉讓。

　c）無論是否進行了反轉讓，若商業糾紛在本條第 5 款規定期限內得到了有利於供應商的解決（包括債務人破產財產管理人的認可），進口保理商應對曾有爭議的賬款重新核准，只要：

　　（1）出口保理商已履行本條第 4 款 a）項下的義務；

　　（2）進口保理商被定期、全面地告知協商或訴訟的進展情況；且

　　（3）解決結果要求債務人在和解或裁決生效（通過法律途徑解決的情況下）之日起 30 日內付款。但在債務人破產財產管理人承認債務的情形下，不適用 30 日的期限。

　d）就本條而言，「通過法律途徑解決」指通過有司法管轄權的法院或其他裁判機構的裁決（為避免疑義，亦包括仲裁）解決商業糾紛，前提是上述法律程序已在和解期限屆滿前以正當的訴訟程序或提請仲裁的方式正式提起。「和解」指任何非經法律途徑的解決方式。

5．第4款c）項所述進口保理商對有爭議的賬款重新核准的期限如下：

　a）在和解的情況下為 180 日；或

　b）在通過法律途徑解決的情況下為 3 年；

以上期限均自收到本條第 2 款規定的商業糾紛通知後開始算起。然而，若在上述期限內債務人正式破產、作出破產聲明或承認破產，進口保理商將在商業糾紛解決前繼續承擔風險。

6．在進口保理商依據本條第 4 款規定對曾有爭議的賬款重新核准的情況下：

　a）若賬款已經反轉讓給出口保理商，進口保理商有權要求立即對其轉讓解決結果賦予出口保理商或供應商的一切權利；

　b）在前述情形下，任何依據第二十四條所作的擔保付款，應在解決結果規定的付款日後的 14 日內支付，前提為：

　　（1）進口保理商依據本條第 6 款 a）項要求的轉讓已由出口保理商在該期限內有效完成；且

　　（2）14 日期限的截止日應遲於原擔保付款到期日。

7．若出口保理商未完全履行本條規定的義務，且該未履行實質性影響了進口保理商的風險頭寸，則進口保理商有權將有爭議的賬款反轉讓給出口保理商，出口保理商應立即退還進口保理商的擔保付款，並支付依據第二十六條 3 款 b）項計算的自擔保付款日至退款日期間的利息。

8．若商業糾紛的解決完全有利於供應商，則一切相關費用均由進口保理商承擔。在其他情況下，費用均由出口保理商承擔。