In exporting, the Tunisian company carefully negotiates the price, deadlines, and logistics, then signs within a few days a contract drafted by its client, on a foreign template. It is, however, here that the real profitability of the operation is decided. Export disputes rarely originate from a product defect. They almost always arise from a contract defect.
- Abandon the governing law applicable to the counterparty
The Code of Private International Law, enacted by the law of November 27, 1998, enshrines the autonomy of the will. The parties choose the law that will govern their contract. Many exporters yield this lever by default. Accepting the buyer’s law without analyzing it amounts to submitting to rules on defects, warranties, termination, and the scope of damages that one does not control. In the absence of a choice, the judge resorts to connecting criteria whose outcome remains difficult to anticipate.
A related mistake is to ignore the 1980 Vienna Convention on the International Sale of Goods. It applies automatically when the parties are based in contracting States, unless expressly excluded. A contract silent on this point can tilt into a regime that the manager has neither chosen nor read, with its own rules on non-conformity, notice of non-conformity and termination. The prudent rule is simple: expressly choose the law, or expressly exclude the Convention, after assessing the effect of that choice.
- Drafting a dispute clause that will not work
The so-called pathological clauses are the most common ill: Tunisian courts “or” arbitration in Paris, referral to a nonexistent institution, absence of seat, language, or number of arbitrators. An ambiguous clause opens a preliminary dispute over competence, often longer than the dispute itself.
The reasoning must start from enforcement and not judgment. Where are the debtor’s assets located? An arbitral award does circulate indeed. Tunisia is a party to the 1958 New York Convention and has an Arbitration Code derived from the law of April 26, 1993. A foreign judgment, by contrast, must go through recognition and enforcement (exequatur) in Tunisia, under the conditions of the Code of Private International Law (jurisdiction of the foreign judge, respect for the rights of defense, absence of conflict with public order).
Conversely, a Tunisian judgment obtained against a foreign client will depend on the local enforcement law. The Code also recognizes the competence of Tunisian courts for a contract performed in Tunisia, unless there is an exclusive forum clause in favor of a foreign forum: this reservation recalls that the written clause takes precedence over intuition.
- Confuse Incoterms with legal certainty
