Impediments and Hardship in International Sales: A Commentary on Catherine Kessedjian's 'Competing Approaches to Force Majeure and Hardship'

摘要

Professor Kessedjian finds it "quite ironic" that the organizers of the CISG Conference held in 2004 at La Pietra asked her to write about force majeure and hardship, because she herself chose this exact topic many years ago for a paper she wrote as a student at the University of Paris. I certainly understand her sentiments. Indeed, my invitation to serve as a Commentator for this session of the La Pietra conference compounds that irony, since I myself wrote about force majeure as a student at the University of Copenhagen. That was back in 1980, the same year the CISG was done in Vienna. My student paper was published, and I can still live with it, since I think my basic approach to CISG Article 79 (and domestic analogues) remains more or less the same. But as Professor Kessedjian rightly reminds us, we have witnessed significant developments on other/related force majeure fronts. So, with Professor Kessedjian's thought-provoking paper as my starting point, I will expand upon some of the issues and sub-issues which I find most interesting within this larger commercial and comparative context. This conference provides a much-welcome opportunity to exchange American and European views. Having spent 30 years (studying and teaching law) in Copenhagen, I cannot deny "where I am coming from," i.e. my predominantly Scandinavian and even European perspective (Denmark's infamous EU-reservations notwithstanding). Then again, the fact that I-as a much younger man-studied economics in Pennsylvania and law in New York also colors my approach to the subject at hand. In the following, I will supplement some items in Professor Kessedjian's Inventory with CISG recent case law, emphasizing what courts and arbitrators have said about impediments to performance under Article 79. I will also comment upon the more fluid hardship concept, both under the Unidroit and European Principles, as well as under selected domestic laws. I will then re-approach these issues from a different angle, asking whether CISG Article 79 might be understood to preempt rules of hardship, or (alternatively) whether hardship rules might be allowed to compete with (and thus supplement) the exemptions provision in Article 79.