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Remedies for Non-performance - Perspectives from CISG, UNIDROIT Principles and PECL,
Liu Chengwei *
INTRODUCTION
[INTRODUCTION]
LIST OF ABBREVIATIONS
A. For Documents
B. For Journals
C. For Organizations
D. For Citations
PART I. GENERAL REVIEW
CHAPTER 1. SOURCES OF INSPIRATION
[CHAPTER 1. SOURCES OF INSPIRATION]
1.1 INTRODUCTION
1.2 OVERVIEW OF THE STUDIED INSTRUMENTS
1.2.1 CISG
1.2.2 UNIDROIT Principles
1.2.3 PECL
1.2.4 Brief Comparison
1.3 MAJOR SOURCES OF INFORMATION
CHAPTER 2. REMEDIES AVAILABLE UPON NON-PERFORMANCE
[CHAPTER 2. REMEDIES AVAILABLE UPON NON-PERFORMANCE]
2.1 INTRODUCTION
2.2 THE CONCEPTS: BREACH OF CONTRACT vs. NON-PERFORMANCE
2.3 REMEDIAL SCHEMES OF THE STUDIED INSTRUMENTS
2.3.1 CISG Part III (Partial)
2.3.2 UNIDROIT Principles Chapter 7
2.3.3 PECL Chapters 8, 9
2.3.4 Concluding Remarks
2.4 STRUCTURE OF THIS PRESENTATION
PART II. PRESERVING PERFORMANCE
PART III. TERMINATION
PART IV. DAMAGES
PART V. EXCUSES
PART II. PRESERVING PERFORMANCE
CHAPTER 3. SPECIFIC PERFORMANCE
[CHAPTER 3. SPECIFIC PERFORMANCE]
3.1 COMPRISED APPROACH UNDER THE CISG
3.1.1 Introduction
3.1.2 Primacy of Specific Performance under Arts. 46/62
3.1.3 Forum's Rule under Art. 28
3.2 BUYER'S RIGHT TO SPECIFIC PERFORMANCE: CISG ART. 46
3.2.1 Introduction
3.2.2 General Rule: Art. 46(1)
3.2.2.1 Right to require performance
3.2.2.2 Non-resorting to inconsistent remedies
3.2.3 Right to Demand Cure: Arts. 46(2) and 46(3)
3.2.3.1 In general
3.2.3.2 Delivery of substitute goods: Art. 46(2)
3.2.3.3 Right to repair: Art. 46(3)
3.2.3.4 Time limit restriction
3.2.3.5 A summary
3.3 SELLER'S RIGHT TO SPECIFIC PERFORMANCE: CISG ART. 62
3.3.1 Rationale of Art. 62
3.3.2 General Application
3.3.3 Potential Problems
3.4 UNIFORM REMEDY IN UNIDROIT PRINCIPLES / PECL
3.4.1 Introduction
3.4.2 Performance of Monetary Obligation
3.4.2.1 Money due generally recoverable
3.4.2.2 Money not yet due
3.4.3 Performance of Non-monetary Obligation: In General
3.4.4 Exceptions to Performance of Non-monetary Obligation
3.4.4.1 The principle and exceptions
3.4.4.2 Performance impossible
3.4.4.3 Unreasonable burden
3.4.4.4 Performance from another source available
3.4.4.5 Performance of an exclusively personal character
3.4.4.6 Unreasonable delay in requiring performance
3.4.5 Right to Require Remedying of Defective Performance
3.4.6 Other Issues
CHAPTER 4. NACHFRIST FOR LATE PERFORMANCE
[CHAPTER 4. NACHFRIST FOR LATE PERFORMANCE]
4.1 GENERAL CONSIDERATIONS
4.2 RATIONALE UNDERLYING THE OPTIONAL APPROACH
4.2.1 Optional Approach under the Studied Instruments
4.2.2 Underlying Rationale
4.2.3 Granting Additional Period in Two Situations
4.3 SETTING OF A NACHFRIST NOTICE
4.3.1 Transmission of the Intention
4.3.1.1 Form of the notice
4.3.1.2 Risk in transmission
4.3.2 Fixing of the Time-limit
4.3.2.1 Fixed period
4.3.2.2 Reasonable length
4.4 EFFECTS OF SERVING A NACHFRIST NOTICE
4.4.1 Remedies Available/Suspended during the Period
4.4.2 Early End of the Existing Uncertainty upon Rejecting Notice
4.4.3 Termination upon Expiry of the Extension
4.4.3.1 In general
4.4.3.2 CISG approach
4.4.3.3 UNIDROIT Principles / PECL approach
CHAPTER 5. CURE BY NON-PERFORMING PARTY
[CHAPTER 5. CURE BY NON-PERFORMING PARTY]
5.1 INTRODUCTION
5.2 CONDITIONS FOR INVOKING CURE
5.2.1 In General
5.2.2 Reasonableness of Notice
5.2.3 Appropriateness of Cure
5.3 SELLER'S RIGHT TO CURE AND BUYER'S RIGHT TO TERMINATION
5.4 EFFECTS OF EFFECTIVE NOTICE
5.4.1 Right to Inquire vs. Duty to Accept Cure
5.4.2 Suspension of Inconsistent Remedies
5.4.3 Retained Rights of the Aggrieved Party
CHAPTER 6. PRICE REDUCTION FOR NON-CONFORMITY
[CHAPTER 6. PRICE REDUCTION FOR NON-CONFORMITY]
6.1 GENERAL CONSIDERATIONS
6.2 FEATURES OF CISG ART. 50
6.2.1 Unique Role and Justification
6.2.2 Self-help Remedy
6.2.3 Seeming Advantages
6.3 IN CONTRAST WITH DAMAGES
6.3.1 Introduction
6.3.2 Distinctions from Damages under the CISG
6.3.2.1 Diverse ratio legis
6.3.2.2 Different manner in calculation
6.3.2.3 Other differences
6.3.2.4 A summary
6.3.3 An Alternative to Damages
6.3.3.1 Introduction
6.3.3.2 In conjunction with force majeure
6.3.3.3 In case of falling market
6.3.3.4 Upon difficulty in proving damages
6.3.3.5 A summary
6.4 ESSENTIALS OF CISG ART. 50
6.4.1 Scope of Application
6.4.1.1 General application in case of non-conformity
6.4.1.2 Ambiguity over defects in title
6.4.2 Exercise of the Right to Price Reduction
6.4.3 Calculation of Proportional Reduction
6.4.3.1 Decisive point: time of delivery
6.4.3.2 Place for comparing
6.4.4 Limited by the Cure
6.5 STATUS OF THE PRICE REDUCTION UNDER UNIDROIT PRINCIPLES / PECL
6.5.1 Exclusion under the UNIDROIT Principles
6.5.2 Inclusion under the European Principles
PART III. TERMINATION
CHAPTER 7. RIGHT TO TERMINATION
[CHAPTER 7. RIGHT TO TERMINATION]
7.1 GENERAL CONSIDERATIONS
7.2 GROUNDS FOR TERMINATION
7.3 CONCLUDING REMARKS
CHAPTER 8. FUNDAMENTAL NON-PERFORMANCE
[CHAPTER 8. FUNDAMENTAL NON-PERFORMANCE]
8.1 GENERAL CONSIDERATIONS
8.2 FORESEEABLE SUBSTANTIAL DETRIMENT
8.2.1 Introduction
8.2.2 Substantial Detriment
8.2.2.1 Existing detriment
8.2.2.2 Substantial deprivation
8.2.2.3 Discernible expectations
8.2.3 Foreseeability
8.2.3.1 Introduction
8.2.3.2 Test for foreseeability
8.2.3.3 Time for foreseeability
8.2.3.4 Burden to prove unforeseeability
8.3 OTHER ELEMENTS IN DEFINING FUNDAMENTAL NON-PERFORMANCE
8.3.1 Strict Compliance of Essence
8.3.2 Intentional Non-performance
8.3.3 No Reliance on Future Performance
8.3.4 Disproportionate Loss
8.4 CONCLUDING REMARKS
CHAPTER 9. ANTICIPATORY NON-PERFORMANCE
[CHAPTER 9. ANTICIPATORY NON-PERFORMANCE]
9.1 GENERAL CONSIDERATIONS
9.2 GROUNDS FOR SUSPENSION
9.3 SELLER'S RIGHT TO STOP GOODS IN TRANSIT UPON SUSPENSION
9.4 DUTY TO GIVE NOTICE IN EXERCISING SUSPENSION
9.5 RESTORING PERFORMANCE BY GIVING ADEQUATE ASSURANCE
9.6 TERMINATION UPON ANTICIPATORY FUNDAMENTAL NON-PERFORMANCE
9.6.1 In General
9.6.2 Clear Indication of A Fundamental Non-performance
9.6.3 Notice Given in case of Termination
9.7 ADEQUATE ASSURANCE OF DUE PERFORMANCE
9.7.1 Purpose of Rule
9.7.2 Non-receipt of Adequate Assurance
9.8 CONCLUDING REMARKS
CHAPTER 10. TERMINATION OF BREACHED INSTALLMENT OR PART
[CHAPTER 10. TERMINATION OF BREACHED INSTALLMENT OR PART]
10.1 TERMINATION OF INSTALLMENT CONTRACTS: CISG ART. 73
10.2 TERMINATION OF FUTURE INSTALLMENTS: CISG ART. 73(2)
10.3 TERMINATION OF A CONTRACT AS A WHOLE: CISG ART. 73(3)
10.4 PARTIAL TERMINATIO: CISG ART. 51
10.5 COMBINED APPROACH: PECL ART. 9:302
10.6 CONCLLUDING REMARKS
CHAPTER 11. DECLARATION OF TERMINATION
[CHAPTER 11. DECLARATION OF TERMINATION]
11.1 NO AUTOMATIC TERMINATION
11.2 INFORMALITY OF THE NOTICE
11.3 TRANSMISSION OF THE INTENTION
11.4 RISK IN COMMUNICATION
11.4.1 CISG Approach
11.4.2 Receipt Principle under the UNIDROIT Principles
11.4.3 Combined Approach under the PECL
11.5 TIME LIMIT FOR THE DECLARATION: IN GENERAL
11.6 DECLARATION WITHIN REASONABLE TIME
11.6.1 Definition of reasonable time
11.6.2 CISG Approach
11.6.3 UNIDROIT Principles / PECL Approach
11.6.4 Concluding Remarks
CHAPTER 12. EFFECTS OF TERMINATION
[CHAPTER 12. EFFECTS OF TERMINATION]
12.1 INTRODUCTION
12.2 RELIEF OF FUTURE PERFORMANCE
12.3 RETROSPECTIVE OR PROSPECTIVE APPROACH
12.4 UNAFFECTED RIGHTS AND OBLIGATIONS AFTER TERMINATION
12.4.1 Continuing Right to Claim Damages
12.4.2 Unaffected Clauses Intended to Apply despite Termination
12.5 RESTITUTION
12.5.1 In General
12.5.2 Entitlement of Parties to Restitution on Termination
12.5.3 Restitution under the PECL
12.5.3.1 Property reduced in value: Art. 9:306
12.5.3.2 Recovery of money paid and property: Arts. 9:306, 9:307
12.5.3.3 Concluding remarks
12.5.4 Restitution of Benefits Received
12.5.5 Exceptions: Restitution Not Possible or Appropriate
12.5.5.1 CISG approach: making restitution a prerequisite for avoidance
12.5.5.2 UPICC/PECL approach: focusing on the allowance upon impossible restitution
12.5.5.3 Comparative perspectives
12.5.5.4 Concluding remarks
PART IV. DAMAGES
CHAPTER 13. GENERAL MEASURE OF DAMAGES
[CHAPTER 13. GENERAL MEASURE OF DAMAGES]
13.1 RIGHT TO DAMAGES
13.2 FULL COMPENSATION
13.3 RECOVERABLE LOSSES
13.4 COMPENSATION OF NON-PECUNIARY LOSS
13.5 COMPUTATION OF LOSSES AND GAINS
CHAPTER 14. LIMITS TO CLAIMS FOR DAMAGES
[CHAPTER 14. LIMITS TO CLAIMS FOR DAMAGES]
14.1 GENERAL CONSIDERATIONS
14.2 FORESEEABILITY OF LOSS
14.2.1 In General
14.2.2 Test for Foreseeability
14.2.3 Party Concerned and Reference Point
14.2.4 Evaluation of Foreseeability
14.2.5 Content of Foreseeability
14.2.6 Concluding Remarks
14.3 CERTAINTY OF HARM
14.4 CONTRIBUTION TO HARM
14.4.1 In General
14.4.2 Ways of Contributing to the Harm
14.4.3 Remedies Affected by the Contribution
14.4.3.1 Remedies available upon non-performance caused solely by the contribution
14.4.3.2 Damages proportionately reduced due to partial contribution
14.5 DUTY TO MITIGATE
14.5.1 In General
14.5.2 Reasonable Measures Taken
14.5.3 Effects of Failure to Mitigate
CHAPTER 15. DAMAGES UPON TERMINATION
[CHAPTER 15. DAMAGES UPON TERMINATION]
15.1 GENERAL CONSIDERATIONS
15.2 DAMAGES UPON SUBSTITUTE TRANSACTIONS
15.2.1 Introduction
15.2.2 Presupposed Situations Calling for Concrete Calculation
15.2.3 Substitute Transaction must be Reasonable Substitute
15.3 DAMAGES UPON CURRENT PRICE
15.3.1 Introduction
15.3.2 Presupposed Situations Calling for Abstract Calculation
15.3.3 Determination of "Current Price"
15.3.3.1 In general
15.3.3.2 Reference point
15.3.3.3 Relevant place
15.4 FURTHER DAMAGES
CHAPTER 16. AGREED PAYMENT FOR NON-PERFORMANCE
[CHAPTER 16. AGREED PAYMENT FOR NON-PERFORMANCE]
CHAPTER 17. RECOVERY OF ATTORNEYS' FEES
[CHAPTER 17. RECOVERY OF ATTORNEYS' FEES]
17.1 GENERAL CONSIDERATIONS
17.1.1 Introduction
17.1.2 Recoverability under "Loser-pays" Principle
17.1.3 Excluded by "American Rule"
17.2 CISG DECISIONS CONCERNING ATTORNEYS' FEES
17.3 PROBLEMATIC RECOVERY UNDER ART. 74 CISG
CHAPTER 18. PAYMENT OF INTEREST
[CHAPTER 18. PAYMENT OF INTEREST]
18.1 INTRODUCTION
18.2 GENERAL ENTITLEMENT TO INTEREST
18.3 ADDITIONAL DAMAGES
18.4 INTEREST ON DAMAGES
18.5 ACCRUAL OF INTEREST
18.6 RATE OF INTEREST
PART V. EXCUSES
CHAPTER 19. CHANGE OF CIRCUMSTANCES
[CHAPTER 19. CHANGE OF CIRCUMSTANCES]
19.1 INTRODUCTION
19.2 UNSDERLYING DOCTRINCE; REBUS SIC STANTIBUS
19.3 DIFFERENT APPROACHES TO CHANGED CIRCUMSTANCES
19.3.1 Historical Review
19.3.2 National Doctrines
19.3.3 International Perspective
19.3.3.1 Public international law
19.3.3.2 International commercial practice
19.3.4 Conclusion
19.4 DEFINITIONS OF force majeure AND HARDSHIP
19.4.1 Force Majeure
19.4.2 Hardship
19.4.3 Comparison
19.5 GENERAL APPROACHES IN THE STUDIED INSTRUMENTS
19.5.1 Approach under the CISG
19.5.2 Approach under the UNIDROIT Principles
19.5.3 Approach under the PECL
19.5.4 Concluding Remarks
CHAPTER 20. force majeure
[CHAPTER 20. force majeure]
20.1 INTRODUCTION
20.2 RELEVANT TEXTS
20.2.1 Exemptions: CISG Art. 79
20.2.2 Force Majeure: UNIDROIT Principles Art. 6.1.7
20.2.3 Excuse Due to an Impediment: PECL Art. 8:108
20.2.4 Comparison
20.3 GENERAL RULE
20.3.1 Scope of Excusable Non-performance
20.3.2 Existence of Qualifying Impediment
20.3.2.1 Introduction of a new word
20.3.2.2 Interpretation of the word
20.3.2.3 Problematic situations
20.3.3 Conditions for Exempting Impediment
20.3.3.1 Beyond control
20.3.3.2 Unforeseeable
20.3.3.3 Unavoidable or insurmountable
20.3.3.4 Causation
20.4 RESPONSIBILITY FOR THIRD PARTIES
20.5 TEMPORARY IMPEDIMENT
20.6 DUTY TO NOTIFY
20.7 EFFECTS
20.7.1 In General
20.7.2 Effect on Right to Damages
20.7.3 Effect on Right to Performance
20.7.4 Effect on Right to Termination
CHAPTER 21. HARDSHIP
[CHAPTER 21. HARDSHIP]
21.1 GAP IN THE CISG?
21.2 INTERPLAY BETWEEN CISG EXCUSE AND UNIDROIT PRINCIPLES / PECL HARDSHIP
21.2.1 Hardship: UNIDROIT Principles Arts. 6.2.1 through 6.2.3
21.2.2 Change of Circumstances: PECL Art. 6:111
21.2.3 Gap-filling Application of Hardship Provisions?
21.3 CONDITIONS FOR INVOKING HARDSHIP
21.3.1 In General
21.3.2 Crucial Point: Fundamental Alteration of Equilibrium
21.3.3 Additional Requirements for Hardship to Arise
21.3.3.1 Time factor: occurrence after conclusion
21.3.3.2 Unforeseeability
21.3.3.3 Risk not assumed
21.4 EFFECTS OF HARDSHIP
21.4.1 In General
21.4.2 Triggering of Renegotiation
21.4.2.1 Request for renegotiation
21.4.2.2 Renegotiation in good faith
21.4.3 Court Measures in case of Hardship
21.4.4 Concluding Remarks
CHAPTER 22. FORCE MAJEURE and HARDSHIP CLAUSES
[CHAPTER 22. FORCE MAJEURE and HARDSHIP CLAUSES]
22.1 GENERAL CONSIDERATIONS
22.2 FORCE MAJEURE CLAUSE
22.2.1 Introduction
22.2.2 Drafting Considerations
22.3 HARDSHIP CLAUSE
22.3.1 Introduction
22.3.2 Drafting Considerations
22.4 OVERLAPPING OF THE CLAUSES
22.5 USE OF STANDARD FORMS: ICC No. 421 (partial)
Endnotes
Endnotes
Metadata
SiSU Metadata, document information
Manifest
SiSU Manifest, alternative outputs etc.
Remedies for Non-performance - Perspectives from CISG, UNIDROIT Principles and PECL,
PART IV. DAMAGES
CHAPTER 17. RECOVERY OF ATTORNEYS' FEES
As discussed previously, no specific rules have been set forth in Art. 74 describing the appropriate method of determining "the loss ... suffered ... as a consequence of the breach". Clearly, Art. 74 does not specifically name attorneys' fees as damages anymore than it names other expenses incurred or losses experienced; on the other, it does not rule out attorneys' fees as damages either. In fact, the Appellate Court in Zapata concluded that the CISG, by its wording or its "background", as the court called it, does not suggest that loss was intended to include attorneys' fees but that the CISG did not, by its wording, exclude attorneys' fees either. 964 It seems that the general language of Art. 74 ("[d]amages ... consist of a sum equal to the loss . . .suffered by the other party as a consequence of the breach") is broad enough to encompass damages for attorneys' fees. 965
Clearly, if failure to construe the CISG damage provisions as encompassing compensation for attorneys' fees meant that a successful litigant could not recover such expenses from the losing party in transactions governed by the CISG, it would certainly present a very difficult issue. Because much of the world follows a loser-pays principle. On the other hand, however, there is nothing in the travaux préparatoires of the Convention to suggest that these countries contemplated changing to the American rule for attorneys' fees in litigation involving international sales. Therefore, a tough task remains: how should such pre-litigation attorneys' fees -- costs of the type covered by the loser-pays jurisdictions which are generally not compensable under the traditional American rule -- be subjected to foreseeability as required by Art. 74?
Generally, full compensation rule seeks to place the injured party in the same position as he would have been had the debtor complied with the terms of his contract, and thus seems broad enough to encompass attorneys' fees as consequential damages. However, it is only as regards such losses as meeting the requirements contained in the full compensation rule. The most problematic aspect of the issue at hand, returning to general considerations, may be the imbalance and uncertainty that allowing attorneys' fees under Art. 74 would create. The standards for recovering attorney costs under the CISG, likely differ from the standards imposed by the loser-pays rules of the various Contracting States: recovery of damages under the CISG is limited by the foreseeability requirement in Art. 74 and the mitigation principle in Art. 77, whereas recovery of attorneys' fees under domestic loser-pays rules undoubtedly are subject to different limitations and principles. Then the question arises on how to subject pre-litigation attorneys' fees to foreseeability as required by Art. 74 in so-called American rule jurisdictions, where such costs are generally not compensable nonetheless covered by the loser-pays jurisdictions.
While in loser-pays jurisdictions, according to its cost shifting rules, the losing party would pay regardless of a breach and the prevailing party would be under no obligation to establish foreseeability as required by Art. 74 or to mitigate the loss (attorneys' fees) as required by Art. 77. Even in such jurisdictions, it is unclear on what basis the distinction between pre-and post-litigation attorneys' fees is made. Further, if no breach of contract or foreseeability were established concerning a CISG claim, an additional regard needs to be had to returning to the jurisdiction's cost shifting rules or other means in order to resolve the disputes.
964. Supra. note 14.
965. Even though, the court or arbitral tribunal must calculate that loss in the manner that is best suited to the circumstances. This means that if attorneys' fees are to be allowed under Art. 74, this happens through submission of the facts of the case under the norm in which the facts assume their meaning, i.e., interpretation. (See Jarno Vanto, supra. note 6.)
