Abstract
The resilience of contracts and the role of contract law has been put to the test in responding to the global COVID-19 pandemic. Various government measures significantly impacted international trading relationships. Supply chain disruptions and uncertainty continue to pose a threat as different countries approach the pandemic with differing priorities and interests. Therefore, parties to international sales contracts seek to identify ways to keep existing commitments, protect against future losses, be compensated for losses they have suffered, and decide whether it is profitable to keep the contract in place. It is vital to examine the legal issues around the possible legal responses to the COVID-19 crisis. However, it is plausible that the lack of predictability regarding the scope, time, and location of governmental measures will introduce further complications. Moreover, the impact of the COVID-19-related measures extends beyond the contractual parties, contributing to adverse social consequences worldwide. The United Nations Convention on Contracts for the International Sale of Goods (CISG or Convention) should reduce these complications by providing predictability and certainty in dealing with the consequences of the pandemic through its uniform rules. The reality, however, is far from ideal. The impact of COVID-19 will bring further challenges in the uniform application of the Convention; and it will do so through one of its most controversial provisions: Article 79. Through the lens of Article 79, this chapter will discuss the effectiveness of CISG as an instrument of public international law adopted with the goal of unification of international sales law. It will (re)consider the negotiation leading to the final text of Article 79, highlight trends in its interpretation and application, and consider possible routes to uniform interpretation and application in the post-pandemic era. In doing so, the chapter will explore whether and to what extent interpretation of Article 79 can encompass adverse social impact in trading relationships between the buyers of the global north and the suppliers of the global south.
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Notes
- 1.
See e.g., Adegoke (2020) [focusing on the impact of coronavirus on commercial contracts in Nigeria]; Andres Velez-Celle et al. (2020) [proposing a typology of force majeure clause specificity and identifying factors that affect the likelihood of a force majeure clause being included in a joint venture contract]; Ayalew (2021), [providing a comparative legal analysis of the application of force majeure and hardship clauses in Ethiopia and China in light of international law in situations of COVID-19 pandemic]; Beale and Twigg-Flesner (2020) [discussing the impact of COVID-19 under English law]; Crespi (2020) [discussing frustration of purpose defense in the U.S. law]; Douglas and Eldridge (2020), [discussing the impact of COVID-19 in Australia]; Ghodosi (2022) [discussing the doctrines in the US law]; Heesaker (2021), [discussing the COVID-19, frustration and contractual discharge in the Canadian common law]; Hoffman and Hwang (2021); Jentsch (2020), [discussing government responses on corona and contracts in Europe: a compilation of extraordinary measures in times of crisis]; Schwartz (2020) [discussing legal doctrines of impossibility and restitution in the US contract law]; Schwartz (forthcoming 2022); Catellanos (2020) [discussing the impact of COVID-19 in Bolivia]; Singh and Leo (2021), [discussing the impact of COVID-19 in India]; Sirena and Patti (2020), [discussing hardship and renegotiation of contracts in the prospective recodification of Italian civil law].
- 2.
See e.g., Berger and Behn (2020), [providing a historical and comparative study of force majeure and hardship in the age of corona]; Blair et al. (2020), [outlining steps to minimise the risk of a deluge of disputes following the COVID-19 crisis and to increase the prospect of constructive outcomes]; Wuest et al. (2020), [discussing the impact of COVID-19 on manufacturing and supply networks]; Twigg-Flesner (2020), [providing a comparative perspective on commercial contracts and the impact of COVID-19].
- 3.
See e.g., Bohrer (2020), [discussing crisis and cultural evolution: steering the next normal from self-interest to concern and fairness]; Fuhriman (2021), [companies that shutdown due to mandatory government regulations will have better force majeure outcomes than companies which have shut down as a result of voluntary government regulations; consequently, Fuhriman questions whether such a “perverse result militates in favor of rethinking whether parties should be treated differently’ and further argues the need to rethink force majeure doctrine, at least in the context of the pandemic”]; Kie Hart (2021), [arguing that contracts and contract law produce social consequences beyond the individual contract and the contracting parties, and the need to acknowledge as part of the solution for some of the most pressing problems currently confronting American society]; Twigg-Flesner (forthcoming), [discussing the potential of the COVID-19 crisis to cause legal disruption to contracts and contract law].
- 4.
From vast discussions, see e.g., Linton and Vakli (2020) [Discussing that government measures are not sufficient to support small and medium sized companies in the supply-chains, further arguing that the manufacturers should take measures to keep their suppliers operational. Methods, however, do not consider their societal impact or human right considerations, but mostly focus on financial and operational factos.].
- 5.
See e.g., World CC 2020 [Limitation of liability clauses consistently ranked as 1 most negotiated term. Although force majeure clauses specifically rank significantly lower –29 out of 30—they are narrower in scope of application than limitation of liability. Therefore, it is possible that companies will address unforeseeable external events under limitation of liability and not necessarily under force majeure clauses. Moreover, force majeure clauses may rank lower not because of their low importance for parties, but due to their stickiness, i.e., standardized templates which do not significantly change over time. Even if companies audit their force majeure clauses, it will likely be with less tension than negotiating other forms of limitation or exemption from liability.] On stickiness of force majeure clauses, see Ghodosi (forthcoming 2022), p. 23 [“It shows that force majeure clauses are quite sticky in their contents and parties repeat similarly worded language for force majeure clauses in their contracts. This is consistent with other research showing that contractual clauses tend to be sticky (i.e., repetitive in content).”].
- 6.
- 7.
Press release: The Prize in Economic Sciences 2016.
- 8.
Triponel and Sherman (2020) [“Companies are hurriedly looking for ways to stop bleeding cash. Beyond fashion and retail, we are seeing this the most starkly in transportation, tourism, hospitality, entertainment, and some consumer goods companies. Companies—large and small—are focused on business survival.”].
- 9.
Sherman (2021), pp. 128–129.
- 10.
Triponel and Sherman (2020) [“Strategies to protect cash flow include reducing overheads, reducing payroll costs, expediting the collection of cash from debtors, cancelling supplier orders, and lengthening payment terms with suppliers. Some companies are asking their lawyers to trigger force majeure clauses in their contracts, to avoid paying suppliers for orders they have already produced.”].
- 11.
Sherman (2021), pp. 127–128; see further Triponel and Sherman (2020) [“But this strategy comes at a high human cost. In lower-income countries, suppliers already have low cash reserves and little access to credit. They have already paid for wages and materials on these past orders. When combined with the future loss of business, cancelling past orders will be enough to put many of them out of business. Workers will be let go overnight, some without wages or severance, many of which support households, lack savings, and have no access to a governmental social safety net. A large number of the 150 million workers in low-income countries producing goods for the west will be impacted by these factory closures, with 4 million alone in apparel in Bangladesh.”]; for a discussion on the impact of order cancelations on workers in Bangladesh, see Anner (2020).
- 12.
Sherman (2021), p. 129.
- 13.
Triponel and Sherman (2020).
- 14.
Id.
- 15.
- 16.
Atamer (2018), p. 1055.
- 17.
Id., p. 1056.
- 18.
Id., p. 1056.
- 19.
Id., pp. 1056, 1060–61.
- 20.
- 21.
Honnold (2009), p. 611 [“even in domestic law it has been difficult to provide coherent answers to the problems that arise when unexpected difficulties prevent or severely impact the performance of a contract. The settings are diverse: […] these are only points on a continuum of difficulties with varying degrees of scope, severity and unpredictability.”]; Dornis (2019), p. 368.
- 22.
See Tallon (1987), p. 572 [discussing various approaches in East European countries, different theories that emerged in the twentieth century, and differences between French, Geman, English, and Amercian law.].
- 23.
Dornis (2019), p. 369.
- 24.
For a detailed overview of the historic and socio-economic context in which civil and common law concepts concerning exemption of liability developed see Mazzacano (2011).
- 25.
A wonderful example of the depth and relevance of such interplay is Chung’s article exploring the difference between a hands-off approach which is dominant in Hong Kong and English law and the interventionist approach dominant in the German law. See Chung (2017).
- 26.
For a discussion on origins of the principle of excuse for non-performance, see Mazzacano (2011), pp. 7–11.
- 27.
Honnold (2009), p. 626 [“it is not practicable to enumerate the circumstances that will excuse a failure to perform. Instead, words must try to express a dividing point on a continuum between “difficult” and “impossible”.]; further discussion on p. 627, citing Tallon [“In spite of strenuous efforts of legislators and scholars we face the likelihood that Article 79 may be the Convention’s least successful part of the half-century of work towards international uniformity. This prospect calls for careful, detailed contract drafting to provide solutions to fit the commercial situation at hand.”].
- 28.
Secretariat Commentary on Article 65 of the 1978 Draft, available at https://iicl.law.pace.edu/cisg/page/article-79-secretariat-commentary-closest-counterpart-official-commentary#Text. See further Tallon (1987), pp. 583–584; Enderlein/Maskow, p. 320 [“Many of the above-mentioned phenomena will generally become impediments. But they are not such per se and without any examination; further criteria must serve as themeasure for them.”]; Lookofsky (1993), p. 300, Honnold (2009), pp. 627–632, Butler and Schlechtriem (2009), pp. 201–203, Schwenzer (2016), 1133–1143, Atamer (2018), pp. 1071–1079, Dornis (2019), p. 369.
- 29.
Honnold (2009), pp. 615–616, pp. 622–626 [considering the hazards of following diverse domestic law: “[…] the danger that local tribunals may unconsciously read the patterns of their domestic law into the general language of the Convention—an approach that would be inconsistent with the Convention’s basic goal of international unification (Art. 7(1)). And deliberate recourse to the exemption rules of a single domestic system would flagrantly violate the Convention. […reference to Art. 7(2)] The fact that a provision of the Convention presents problems of application does not authorize recourse to some one system of domestic law since this would undermine the Convention’s objective “to promote uniformity in its application.”].
- 30.
Honnold (2009), p. 616 [In the absence of such innocence, the preconceptions based on domestic law may be minimized by close attention to the differences between domestic law and the Convention.]; at the same time, Honnold sees no danger in seeking guidance through comparative law], see further p. 623 [“In seeking guidance from a consensus or “common core” of domestic law, certain standards of relevance would be appropriate. The Convention is designated for international trade; the most relevant rules of domestic law are those that reflect the practices and problems of international trade or, at least, grow out of domestic transactions that are comparable to those of international trade. And, akin to this, is the special value of legal trends that reflect a careful reworking and modernization of traditional and archaic legal concepts.”]. contrast with Enderlein and Maskow (1992), p. 319 [explaining that the Convention developed a concept of its own concerning impediments, which is why “This saves from borrowing from a domestic law in interpretation, which could be very misleading, especially when it comes to one's own domestic law. […]. For this reason, we are, like Tallon, also skeptical in regard to the recommendation by Honnold to adopt the comparative law approach when it comes to the interpretation of the grounds for exemption. There are no generally recognized methods which could be used to comprehensively identify the prevailing patterns and trends of modern domestic law which he recommends.”].
- 31.
A majority view is that it should, and it does relying on dogmatic considerations concerning the conformity of goods and the drafting history. See e.g., Tallon (1987), pp. 576–577; Enderlein and Maskow (1992), pp. 319–320 [“But we, too, are of the opinion that these differences of opinion are of littlepractical weight, because impediments as defined in Article 79, paragraph 1 will seldom be the cause of non-conformity.”]; Butler and Schlechtriem (2009), pp. 204–206, Atamer (2018), pp. 1059–1060 [explaining the difference between civil and common law approaches to interpreting Art. 79, concluding that “[…] it would make no sense to differ between the applicability of Art. 79 according to the effect of the unforeseeable impediment.”]; Dornis (2019), p. 369. Some authors, nonetheless, maintain the view that non-conformity should not fall within the scope of Article 79. In any case, an impediment has to cause the party’s failure to perform for such failure to fall under Article 79 analysis. See e.g., Honnold (2009), pp. 617–621 [“The position that a seller’s reasonable lack of awareness of a non-conformity should exempt it from liability for damages contradicts the structure and drafting history of the Convention, as well as its goal of uniform application.”]; Flechtner (2007), pp. 47–48 [supporting Honnold’s view, and further discussing the ethical perspective behind the issue stating that “there is no mention of the complementary ethical issue of whether it is fair that a buyer—who generally has even less control over or knowledge of the actions of the seller’s supplier, and who is generally also not ‘at fault’ for the non-conformity—should suffer uncompensated damage.”].
- 32.
From vast academic contributions, see e.g., Nicholas (1979), Puelinckx (1986), Gordley (2004), Kessedjian (2005) and comment by Lookofsky (2005/2003), Schwenzer (2008), Lookofsky (2005), DiMatteo (2015), Petsche (2015), Kuster and Andersen (2016), Ishida (2018), Oral (2019), Kim and Kim (2019). The debate, spanning several decades, from the time of CISG’s drafting until now, seems to be far from settled. Some are of the view that hardship does not fall under the umbrella of Article 79(1), arguing further that any interpretation or application to the contrary would go against the intended scope and purpose of the provision and would lead to expanding Article 79 (1) beyond its limits. Others believe that an external event may qualify as a hardship if the analysis is focused on the effects of the event on the failure of performance. In other words, events that lead to hardship under national systems can, factually, constitute an impediment under Article 79 (1). However, such a conclusion should not by default mean that remedies that follow hardship in national systems or in, for example, UNIDROIT Principles, should automatically follow.
- 33.
The prevailing view, following the language of paragraph 2, a party may not rely on subcontractors or supplier’s failure to perform for exemption if subcontractor’s or supplier’s obligation was a precondition for the seller’s performance. The seller has to engage an independent third party to perform the whole or part of the contract. See e.g., Tallon (1987), pp. 584; Lookofsky (1993), pp. 304–305, 308–309; on exemption from liability for the conduct of third person, see Atamer (2018), pp. 1079–1083; for a notion on third party, see Atamer (2018), pp. 1080–1083; for a notion of and default by third party, see e.g., Honnold (2009), pp. 632–636; Butler and Schlechtriem (2007), p. 207; Schwenzer (2016), p. 1129 [“The relevant indicator is, however, the procurement risk. Where the seller bears the procurement risk, his exemption is generally governed by Article 79(1); in any other case, by Article 79(2). As regards distribution chains, Article 79(1) is decisive, because the seller is burdened with the procurement risk for the whole chains. Only under exceptional circumstances may an exemption pursuant to Article 79(2) be conceivable.”]. Case law is not clear on this point; for example, the German Bundesgerichtshof did not clearly define the boundaries of seller’s liability for failure of his suppliers. See further, Dornis (2019), p. 374.
- 34.
In principle, the right remains unaffected; however, as long as the impediment exists, specific performance is not possible. Moreover, the outcome would also depend on whether the performance is objectively or subjectively impossible. In any event, the duration of the impediment determines the duration of the temporal scope of Article 79 coverage. In other words, as long as an impediment exists, the party is exempted from liability and no specific performance is possible. This applies in cases of temporary or passing impediments; once the impediment ends, the party must perform. See e.g., Schlechtriem (1986), pp. 103–104; Butler and Schlechtriem (2007), pp. 207–208; Honnold (2009), pp. 636–639; Atamer (2018), pp. 1062–1063; Dornis (2019), p. 376.
- 35.
- 36.
CISG, Preamble, paragraph 3.
- 37.
- 38.
Martonyi (2015), p. 5 [“CISG may therefore be not only a bridge between treaty made uniform law and international commercial practice, […] but also between the past and the future. In other words, it is not only a bridge, but an anticipation and anchor for the future.”].
- 39.
Kastely (1988), p. 576: [“The creation of such a community is fundamental to the unification effort; without such a community, a theoretical unification will have no function or significance in the world of human affairs.”].
- 40.
Id., p. 576.
- 41.
Id., pp. 576–577.
- 42.
Id., p. 577.
- 43.
Winship (1987–1988), p. 625.
- 44.
Felemegas (2007).
- 45.
Id..
- 46.
Id. Professor Felemegas argues that the uniformity of CISG’s application depends on the uniform interpretation of its rules in different legal systems and that it develops uniformly to address the future challenges the community subject to it will face.
- 47.
Kastely (1988), pp. 593–594 [“These values, taken together, provide coherence to the language established by the Convention. There is, throughout, a sense of individual autonomy and serious promissory commitment, balanced by the need for honest communication, good faith, concern for others, and the forgiveness of innocent mistakes. This complex of values structures the particular issues emphasized by the Convention and gives a richness to the language that is essential to its ability to generate a sense of commonality among its readers and to serve as the medium for development of an ongoing community. If the Convention does have the potential to do these things, it is because of the persuasiveness and coherence of its underlying values.”]; see further Felemegas (2007).
- 48.
Kastely (1988), pp. 593–594.
- 49.
Blair (2011), p. 301.
- 50.
Köhler (2021).
- 51.
Meyer (2009).
- 52.
- 53.
- 54.
See e.g., Germany, 11 September 1998, Appellate Court of Koblenz, available at https://iicl.law.pace.edu/cisg/cisg [When deciding whether a Moroccan buyer notified her German seller of the non-conformity concerning sophisticated chemical substance, the Court failed to consider the region-specific factual circumstances and the differences between Western economies and emerging economies. For further discussion on this specific case, see, e.g., Alaoudh (2012), Akaddaf (2001)].
- 55.
Blair (2011), p. 280 [citing H.L.A. Hart “The inevitability of incompleteness of contracts reflects, to borrow a distinction from H.L.A. Hart, both our ‘relative ignorance of fact’ and ‘our relative indeterminacy of aim’.”]. On incompleteness of contracts, see also the work of Hart and Moore (1998), Schmidt (2017) [discussing contributions of Oliver Hart and Bengt Holmström to Contract Theory. Hart and Holmström have been jointly awarded the 2016 Nobel Prize in Economic Sciences for their work on contract theory, see further at https://www.lindau-nobel.org/oliver-hart-incomplete-contracts-and-the-theory-of-the-firm/.].
- 56.
Blair (2011), pp. 281–282.
- 57.
- 58.
CISG Preamble, paragraph 3 [Being of the opinion that the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade].
- 59.
Blair (2011), p. 287.
- 60.
Article 6 CISG: The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions.
- 61.
Blair (2011), p. 307.
- 62.
Id., p. 288.
- 63.
- 64.
Ghodosi (forthcoming 2022), pp. 12–13.
- 65.
Eckhard and Mellewigt (2006), pp. 19–21, Sorsa et al. (2011), pp. 205–206. The risk concerning adaptability is particularly important for the present discussion since it encompasses the risk that contractual relationship is not adaptable to the changes that may unexpectedly arise on the market or which might otherwise affect the contract performance (e.g., market shifts, technological advancements, or other events that mostly occur during contract performance). Examples include force majeure and hardship clauses, price adjustments, and change procedure mechanisms.
- 66.
Id.
- 67.
See, Spivack (2006), p. 759 [arguing that, if applied strictly and according to its wording, Art. 79 renders most of the political and economic events unavailable as excuses for performance and in fact, the provision would deny them a forum to be heard.]. See further e.g., Schwenzer (2016), p. 1129 [“parties have repeteadly attempted to invoke Article 79 for exemption, they only very rarely succeeded”]; Dornis (2019), p. 368; for an overview of Article 79 related case law, see Kuster and Andersen (2016).
- 68.
Id., p. 759, 760 [“The CISG language may also move parties to include some kind of renegotiation clause” allowing the parties to continue their contract further promoting the CISG goals.]; See also, Smythe (2005) [discusses use a behavioral economics approach to analyze the effects of the doctrine of impracticability on “relational” contracts—long-term contractual agreements that are typically adapted to changed circumstances and unforeseen contingencies as they arise].
- 69.
Honnold (2009), p. 614 [“Consequently, in important transactions and in a wide variety of standard contracts explicit provision is made for the consequences of serious impediments to performance. The contracts can (and do) take account of the conditions and needs presented by various types of transactions. […] Principles of efficiency and fairness can best be distilled from contracts prepared with the cooperation of both sellers and buyers.”].
- 70.
Honnold (2009), p. 625.
- 71.
Id., p. 626.
- 72.
See e.g., Kie Hart (2021), p. 49 [“The first thing that needs to happen is to actually acknowledge that contracts and contract law produce social (i.e., public) consequences. In essence, this step is a call to shift the frame from within which contract law is currently understood and analyzed. This may seem like a trivial step to take but it is not. This is because “frames” are what enable people to make sense of the world around them. Indeed, the purpose of a “frame” and the process of “framing” is to create common meaning and shared understandings of the world and how it works, which then legitimates those meanings and the responses to them. In short, by explicitly trying to influence what people think and how they think about them, frames help shape reality.”].
- 73.
See https://www.business-humanrights.org/en/big-issues/un-guiding-principles-on-business-human-rights/. The full text of the UN Guiding Principles on Business and Human rights, including unofficial translations is available at https://www.business-humanrights.org/en/big-issues/un-guiding-principles-on-business-human-rights/text-of-the-guiding-principles/.
- 74.
UN Guiding Principles on Business and Human Rights, 2.
- 75.
Id., General Principles, 2.
- 76.
Id., General Principles, 2.
- 77.
Id., General Principles, 2.
- 78.
Id., General Principles, 2.
- 79.
Id., II. The Corporate Responsibility to Respect Human Rights, A. Foundational Principles, Principle 11, 14.
- 80.
Id., II. The Corporate Responsibility to Respect Human Rights, A. Foundational Principles, Principle 11, Commentary, 14.
- 81.
Id., II. The Corporate Responsibility to Respect Human Rights, A. Foundational Principles, Principle 12, 14–15.
- 82.
Id., II. The Corporate Responsibility to Respect Human Rights, A. Foundational Principles, Principle 12, Commentary, 14–15: [“An authoritative list of the core internationally recognized human rights is contained in the International Bill of Human Rights coupled with the principles concerning fundamental rights in the eight ILO core conventions as set out in the Declaration on Fundamental Principles and Rights at Work. […] The responsibility of business enterprises to respect human rights is distinct from issues of legal liability and enforcement […] Depending on circumstances, business enterprises may need to consider additional standards […] such as instrument on the rights of indigineous peoples, women, children, persons with disbilities, migrant workers and their families.”].
- 83.
OECD (2011), Concepts and Principles, 17.
- 84.
OECD Guidelines for Multinational Enterprises, Concepts and Principles, 17, ¶1.
- 85.
Id., Concepts and Principles, 17, ¶¶1–2.
- 86.
Id., Foreword, 3.
- 87.
Id., Foreword, 3.
- 88.
OECD (2018), OECD Due Diligence Guidance for Responsible Business Conduct, Foreward.
- 89.
OECD Due Diligence Guidance for Responsible Business Conduct, 14–16.
- 90.
Id., 16.
- 91.
Id., 16–20.
- 92.
For example, the guidelines provide clarification concerning due diligence prioritization – how to decide on prioritization, at which stages is prioritization relevant, what is the difference between human rights’ prioritization when compared to adverse impacts prioritization. For more details, see Annex: Questions related to the overview of due diligence for responsible business conduct, 37–91.
- 93.
For discussions on the first version of the MCCs, see Dadush (2019).
- 94.
Snyder and Maslow (2021), p. 9.
- 95.
Id., p. 9.
- 96.
Id., pp. 10–12, see p. 11 [“Human rights due diligence is a prospective, retrospective, and ongoing risk management process that enables businesses to respect human rights by identifying, preventing, mitigating, and accounting for how they address the impacts of their activities on human rights.”].
- 97.
The information about The Chancery Lane Project is available at https://chancerylaneproject.org/about/.
- 98.
See About us section at https://chancerylaneproject.org/about/.
- 99.
See About us section at https://chancerylaneproject.org/about/.
- 100.
See Resources section at https://chancerylaneproject.org/comms-resources/.
- 101.
See Resources section at https://chancerylaneproject.org/comms-resources/.
- 102.
All clauses are available https://chancerylaneproject.org/model-clauses/.
- 103.
Climate Contract Playbook (2020).
- 104.
Snyder and Maslow (2021), p. 14.
- 105.
Id., pp. 13–14.
- 106.
Id., p. 14.
- 107.
Id., p. 14.
- 108.
Id., 37. [The model clause specifically refers to COVID-19 pandemics which shown that “relying on current contractual risk allocation can lead to adverse environmental consequences and to uncertainty.”].
- 109.
Id., p. 37.
- 110.
Id., p.37.
- 111.
Id., p. 38 [“The clause has been drafted for a supply contract, but the principles of climate risk sharing can be applied to a variety of contractual agreements. The definitions of adverse climate outcomes and adverse social outcomes should be tailored to fit the potential adverse outcomes of non-performance.”].
- 112.
Id., pp. 37, 38 [“The wording of the definition of Force Majeure is flexible. Parties may use their preferred wording, so long as the carve out for pandemic and climate change event is added.”].
- 113.
Id., p. 37.
- 114.
Id., Additional definitions, p. 38.
- 115.
Id., p. 39 [“Embedded Carbon: the Greenhouse Gas Emissions emitted during the lifecycle production, delivery and disposal of the [Products/Services]”].
- 116.
Id., Additional definitions, p. 38.
- 117.
Id., Section 1.2, p. 40.
- 118.
Id., Section 1.3, p. 40.
- 119.
Of course, the relationship between the Model Clause and Article 79 would ultimately depend on the interpretation of parties’ intent.
- 120.
Jensen and Wahnschaffe (2021), p. 26; see also, p. 27 [“In any event, what cannot be inferred from the general principles of the CISG is the judicial (or arbitral) competence to adapt the contract.”].
- 121.
Smythe (2016), p. 8.
- 122.
Id., pp. 15–16.
- 123.
Id., pp. 18.
- 124.
Id., p. 16, 18.
- 125.
Id., p. 19.
- 126.
Id., pp. 33–34.
- 127.
Id., pp. 33–34; see also Honnold (2009), pp. 220–222.
- 128.
Saidov (2013), p. 3.
- 129.
Schroeter (2017–2018), pp. 7–8.
- 130.
Id., p. 6.
- 131.
Id., pp. 30–34. Factual circumstances such as illiteracy or merchants or lack of experience of buyers in the global south can be considered in the context of Articles 11 and 44, respectively.
- 132.
Id., pp. 5–6 [“[…] factual circumstances that exist in some regions of the world, but only to a lesser extent or not at all in others. Closely related to factual circumstances are cultural factors, including different regional socio-economic and political environments. When using a rather crude dichotomy between law and facts, cultural factors may even be regarded as a sub-category to factual circumstances, while a definition of culture as „the socially transmitted behaviour patterns, norms, beliefs and values of a given community would invite a stricter distinction between the two concepts.”].
- 133.
Id., pp. 5–6.
- 134.
- 135.
See Schroeter (2018) pp. 17–27 [discussing the commercial values within CISG].
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Jevremovic, N. (2022). Article 79 CISG: Testing the Effectiveness of the CISG in International Trade Through the Lens of the COVID-19 Outbreak. In: Sooksripaisarnkit, P., Prasad, D. (eds) Blurry Boundaries of Public and Private International Law. Springer, Singapore. https://doi.org/10.1007/978-981-16-8480-7_8
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