Study On The Issues Of Application Of Article 79 Of CISG In The Context Of PHEIC

In the period of global industrial division of labor,all aspects of international trade are distinctly characterized as transnational.Events such as the coronavirus pandemic outbreak in 2020 in particular have a strong impact on international trade.The United Nations Convention on Contracts for the International Sale of Goods(CISG)is often applied in international commercial disputes.In the event that a global pandemic causes an impediment to the performance of an international commercial contract to which CISG applies,the non-performing party will likely invoke Article79 of CISG to exempt from damages.Two types of issues may arise from this application process: first,the controversial issues of the application of Article 79 of CISG itself.Second,the issues arising from specific application of Article 79 of CISG in the context of public health emergencies of international concern(PHEIC).This thesis focuses on facilitating the understanding of Article 79 of CISG by sorting out these issues and providing insights into the invocation of Article 79 of CISG to deal with impediments to international commercial contracts in the context of PHEIC.Chapter 1 provides the dilemma of the application of Article 79 of CISG in the context of PHEIC.This chapter is divided into two sections on the connotation and legal effects of impediments in Article 79 of CISG,and provides the difficulties and points of application of Article 79 of CISG under PHEIC from the perspective of both CISG itself and the situation under PHEIC.From the perspective of the connotation of impediment in Article 79 of CISG,the legal attributes of the impediment contain Force Majeure,and differs from Frustration of Contract,while it is controversial whether Hardship constitutes an impediment.Among the special circumstances which constitute impediments,non-performance caused by certain third person may constitute an impediment.It is controversial whether the non-conformity of delivery may constitute an impediment.Among the specific events that constitute impediments,it is controversial whether pandemics,strikes,and governmental actions constitute impediments.From the perspective of the legal effect of impediments,the exemption is provided during the existence of impediments,and the party claiming the exemption has a duty to notify.The other party may claim the remedy for contract after the exemption,and the contract can be avoided when it constitutes a fundamental breach of contract.It is controversial whether the remedy includes specific performance,compulsory renegotiation,adjustment or termination of contract by an adjudicating body.Chapter 2 clarifies the controversies over the application of Article 79 of CISG.From the history of practice of Article 79 of CISG on the resolution of controversies,it is clear that controversies under each paragraph of CISG Article 79 still remain to be discussed.Among the controversies under the connotation of impediments,Hardship,non-comformity of delivery,specific events such as pandemics,political strikes,and governmental actions may constitute impediments.Among the controversies under the legal effects of impediments,the party adversely affected shall be entitled to renegotiation when Hardship constitutes an impediment.However,the adjudicating body shall not,in principle,adapt or terminate the contract.The remedy of specific performance shall not be excluded by Article 79 of CISG.Chapter 3 discusses the application of Article 79 of CISG paragraph by paragraph in the context of PHEIC.The failure to perform caused by PHEIC may constitute an impediment similar to Force Majeure if the conditions of uncontrollability,unforeseeability,unavoidability or insurmountability are satisfied.PHEIC may constitute an impediment similar to Hardship if the PHEIC only results in economic hardship which causes significant contractual imbalance and is distinguished from general commercial risks.PHEIC mostly constitutes a temporary impediment and results in exemptiton during of its existence.If PHEIC constitutes an impediment,the other party to the contract may claim a remedy or avoid the contract in accordance with CISG in the certain circumstances.Chapter 4 provides inspiration for application of Article 79 of CISG to meet challenges of PHEIC.When applying Article 79 of CISG,adjudicators should adhere to the principle of restrictive application of the exemption,and appropriately apply the principle of Good Faith in Article 7 of CISG to carefully interpret the controverisies,and rule on a case-by-case basis with the specific circumstances.For international trade entities,they should pay fully attention to the function of party autonomy to formulate comprehensive exemption clauses,and monitor contract performance and claim remedy in due course to ensure smooth conduction of international trade and allocation of responsibilities under accidents.