The Law of Damages in International Sales: The CISG and
Other International Instruments by Djakhongir Saidov [*]
Elisabeth Opie [**]
|Published by:||Hart Publishing|
The Law of Damages in International Sales is a well-organised resource for practitioners structuring international commercial deals, as well as counsel, arbitrators or judges involved in dispute resolution for international transactions which result in a claim for damages.
The text focuses on three cross-border instruments which could be applicable in the event that the remedy of damages is sought: the United Nations Convention on Contracts for the International Sale of Goods (CSIG), the UNIDROIT Principles of International Commercial Contracts (UPICC) and the Principles of European Contract Law (PECL). Saidov's well-researched analysis of the law of damages extends beyond the value of the book beyond these instruments, addressing issues raised in civil and common law jurisdiction.
At the outset Saidov sets himself two main goals: (i) to provide an overview of the remedy of damages in the international context; and (ii) to demonstrate the value of the mechanisms available in each of the above instruments to claim damages. The structure of the book lends itself to this task, stepping the reader through issues which might arise under each of these broad headings.
The Introduction highlights the main aspects of each of these instruments and the principles which underlie these. It also provides a useful overview and comparison of the purpose of each, drawing the reader's attention to the possible intertwining of their application. Contents include an overview of the law of damages, categories of loss, methods of limiting damages, mitigation, proof of loss and calculation of damages. [page 249]
The book has a third element to it: due to its content and the examples provided throughout, it provides a practical perspective for advisers to both buyers and sellers to think through or deal with an undesirable situation (whether becoming plaintiff/claimant or defendant/respondent) -- often not seriously contemplated by the client or adequately catered for in documentation when a transaction is being executed.
Throughout his book, Saidov addresses elements of the law of damages and the three instruments, which assists (and perhaps reminds) the reader to consider a number of issues arising in an international trade context, including consideration of:
(i) the cost-benefit analysis for a deal, including assessing risk through evaluating categories of loss recoverable;
(ii) the appropriate drafting of provisions to be included in a contract (currency, warranties, indemnities, and limitation of liability clauses) to facilitate an enforcement of contractual rights within an accepted risk and profile;
(iii) the appropriate governing law for a transaction (taking into account the type and subject matter of transaction);
(iv) the possible impact of choosing a particular forum and mechanism for resolving disputes over another;
(v) linking contractual and governing law provisions to any dispute resolution clause and / or obligation to mitigate loss;
(vi) managing a contract so as to minimise damages;
(vii) managing a dispute, including topics such as (a) anticipatory breach; (b) the impact of asserting a particular legal right under the CISG, UPICC or PECL on any claim for damages (determined) payable; (c) what could constitute an appropriate claim for damages; and (d) reputational issues.
The final but overall aim of The Law of Damages in International Sales could also be said to promote uniformity in this area of law. Saidov has done well to consolidate an analysis of the fundamentals for damages in international sales, providing invaluable guidance. [page 250]
* Djakhongir Saidov is a Lecturer in Commercial Law at the University of Birmingham. He holds a Law degree (Bakalavr) from the University of World Economy and Diplomacy (Uzbekistan), and an LLM and PhD from the University of East Anglia.
** Elisabeth Opie BA LLB (Hons) LLM GAICD, Corporate Secretary, Commonwealth Scientific and Industrial Research Organisation.