Christian Thiele Go to Database Directory || Go to Bibliography || Go to CISG Case Search Form

Reproduced with permission of 2 Vindobona Journal of International Commercial Law and Arbitration (1998) 3-35

Interest on Damages and Rate of Interest Under Article 78 of the U.N. Convention on Contracts for the International Sale of Goods

Christian Thiele LL.M. (Univ. of San Diego)

I. Introduction

Although Article 78 of the U.N. Convention on Contracts for the International Sale of Goods ("CISG") only consists of one single sentence, it appears to be one of the most disputed provisions in the entire Convention [1]. In particular, Article 78 CISG raises difficult questions of interpretation and gap-filling. In its first part, this paper, therefore, provides the reader with a brief overview of the contents of Article 78 CISG. The next section will discuss a problem of interpretation by means of analyzing the question whether Article 78 CISG also applies to interest payments on damage claims. Finally, the highly disputed issue of determining an appropriate interest rate under Article 78 CISG will be discussed, followed by a final conclusion.

II. Overview of the Basic Content of Article 78 CISG

Article 78 CISG provides that "[i]f a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under article 74". This provision, therefore, grants the general right to interest but is silent on the question of the applicable rate [2].

A. Sphere of Application

As to the sphere of application, Article 78 CISG undoubtedly applies to interest on the purchase price [3]. Furthermore, the provision also applies to "any other sum that is in arrears". This language has been interpreted to encompass expenses that one party had on behalf of the other [4] as well as reimbursements when the purchase price is reduced according to Article 50 CISG [5]. Although the language of Article 78 CISG might suggest otherwise, the provision does not apply to interest payments on the refund of the purchase price if the purchase contract is avoided because this case is covered by the specific provisions of Article 84 CISG [6]. Whether Article 78 CISG also applies to interest on damages is controversial and will be discussed in the following section. Finally, Article 78 CISG does not apply to interest payments on interest and, thus, gives no right to compound interest [7]. One reason for this restriction is that compound interest does not appear to be widely accepted in international business transactions [8].

B. Requirements

As to the requirements of Article 78 CISG, the only condition is that the amount in question is "in arrears". Although the language of Article 78 CISG expressly states this requirement only for "any other sum", it likewise applies to the payment of the purchase price [9]. In this context, Article 58 CISG determines the time of payment of the purchase price [10]. Moreover, Article 84 states specifically from which date interest under that provision must be paid [11]. According to the prevailing view, all other claims become due when they arise [12]. The question whether this also applies to interest on damages, again, is controversial and will be discussed later on.

Absent any further requirements in the text of Article 78 CISG, it is important to note that Article 78 (unlike the legal systems of many other countries) does not require any formal notice of the claim in order to invoke the right to interest [13].

C. Damages Under Article 74 CISG and Interest Under Article 78 CISG

As stated in the previous section, neither the exemptions of Article 79 nor other requirements necessary to invoke the right to damages apply to Article 78 [14]. Nevertheless, Article 78 CISG gives the creditor a right to recover interest "without prejudice to any claim for damages recoverable under Article 74" [15]. If the requirements of Article 74 are fulfilled, the creditor, thus, may claim the full interest under Article 74 CISG [16]. Article 78 CISG, therefore, mainly becomes important if the requirements for a damage claim are not fulfilled [17].

III. Interest on Damages

After the foregoing overview of the contents of Article 78, this paper will now move on to discuss the question of whether Article 78 also grants the right to interest on damages.

A. Overview of the Problem

As stated above, Article 78 grants the right to interest on the purchase price or "any other sum that is in arrears". It is questionable whether this language also extends to claims for damages. Case law on this issue is very rare. Most published decisions in which interest has been sought seem to deal with actions for the purchase price [18]. One example to the contrary is the case of Delchi Carrier v. Rotorex Corp. [19]. In Delchi, the plaintiffs sued for damages under Article 74 CISG plus interest on those damages [20]. The court held that plaintiff was entitled to prejudgment interest pursuant to Article 78 but failed to include any arguments for its decision. [21] Similarly, in an action for damages under Article 61(1)(b) CISG, the Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft in Austria held that the seller was also entitled to interest on the damages [22]. Again, the court did not state any rationale for its decision [23].

Legal scholars, on the other hand, seem to agree that one has a right to interest on damage claims under Article 78 if the amount in question has been liquidated vis-à-vis the other party [24]. Whether this right to interest also applies to unliquidated sums, is controversial, however. The pertinent question, thus, does not appear to be if Article 78 applies to damages at all, but rather when damages can be considered as being "in arrears" under Article 78 [25].

B. Analysis

1. Interpretation or Gap-Filling?

Article 7 CISG may give some guidance to resolve disputes like the one in question. In order to find a solution to the question of when damages may be considered to be due under Article 78 CISG and, consequently, if Article 78 also applies to unliquidated damages, one first has to determine which subsection of Article 7 applies. Whereas Article 7(1) deals with the interpretation of the Convention and, thus, relates to unclear matters, Article 7(2) provides the procedure for gap-filling and, therefore, relates to unsettled matters [26]. Occasionally, it has been stated without further explanation that the issue of interest on damages is "not settled" in the Convention and that, therefore, a gap exists which should be filled by using the procedure set forth in Article 7(2) of the Convention [27]. This result is questionable, however. Whereas, for example, the lack of the applicable interest rate in the Convention clearly constitutes a gap, Article 78 CISG at least states that interest has to be paid on "any other sum in arrears". Since this expression is ambiguous, the issue whether Article 78 also applies to unliquidated damages, is a question of interpretation of the text of Article 78 CISG rather than a problem of gap-filling [28]. Contrary to the view expressed by some authors that it is allegedly almost impossible to distinguish between questions of interpretation on the one hand and problems of gap-filling on the other [29], therefore, Article 7(1) CISG should apply [30].

Article 7(1) provides that when interpreting the Convention one has to take into account the international character of the CISG and the need to promote uniformity in its application as well as the observance of good faith in international trade [31]. The primary method of interpretation, nevertheless, remains the textual interpretation [32]. In addition, the purpose of the Convention, the legislative history, and the drafters´ intent may be taken into account [33].

2. Textual Interpretation

Applying these principles to the issue in question, one could argue that the language of Article 78 ("sum that is in arrears") indicates that a right to interest on damages only exists if the amount in question is liquidated at the time it becomes due [34]. However, this textual argument is not persuasive [35]. Even if the amount of damages to be paid is not fixed yet, the claim for damages is still a claim for a "sum". In case of a breach of contract, the breaching party has to compensate the other party for the loss which that party has suffered. When it fails to do so, this "sum" may be considered as being "in arrears" [36]. Therefore, the textual interpretation may not be used as an argument against the application of Article 78 to unliquidated damages [37].

3. Interpretation According to the Lex Fori

On the other hand, it has been argued that courts may interpret Article 78 in light of their own legal traditions and rules [38]. However, this is exactly the kind of procedure that Article 7(1) of the Convention seeks to prevent [39]. Courts, therefore, should not refer to their own law to determine the meaning of a specific expression in the Convention but should rather try to find a uniform solution in accordance with the guidelines of Article 7(1) [40].

4. Legislative History

With the statutory language unclear and Article 7(1) requiring a uniform interpretation, one should turn to the legislative history to determine when damages become due under Article 78. Honnold has stated that "interest has traditionally been limited to delay in paying liquidated sums" [41]. Accordingly, it has been argued that this tradition underlies the expression "sum in arrears" and, thus, the drafters of the Convention did not intend Article 78 to apply also to damages unless those damages have been liquidated vis-à-vis the other party [42]. However, the legislative history does not reveal that the drafters of the Convention proceeded on this assumption. In fact, the drafters did not even talk about the problem of unliquidated damages [43]. Therefore, the legislative history appears to be inconclusive as to the issue in question.

5. Purpose of Article 78 CISG

As stated above, when interpreting a specific provision of the Convention, the purpose of that provision should be taken into account. With respect to Article 78, however, the purpose is not entirely clear. Some authors have suggested that Article 78 is intended to prevent undue enrichment on the debtor´s part [44]. The debtor, it is argued, should not be permitted to use money to which the creditor is entitled [45]. On the other hand, some authors believe that the purpose of Article 78 rather is to protect the creditor and indemnify him or her for the loss incurring from the debtor´s withholding of the sum in dispute [46].

For the issue in question, however, this dispute does not have to be decided. Both purposes are best served when interest on damages can be recovered from the time the breach of contract occurs: If one party breaches the contract, the other party is entitled to damages. Regardless of whether the exact amount of damages has been specified yet, the breaching party still owes compensation to the other party from the time of the breach. Accordingly, the breaching party should be prevented from retaining the benefit from the sum owed to the creditor from that time until payment.

Similarly, had the breaching party not breached the contract, the other party would not have suffered any loss. The basis for this loss, however, accrues at the moment of the breach of contract when the initial loss occurs. Therefore, the aggrieved party is deprived of the use of the money from the moment of the loss, even though that amount has not been specified yet. Accordingly, the non-breaching party should be entitled to interest payments on the loss from the time of the breach [47].

6. Conclusion

Damages under Article 78, therefore, become due at the moment the contract is breached and the initial loss occurs. Consequently, Article 78 applies not only to liquidated but also to unliquidated damages [48].

IV. The Rate of Interest Under Article 78 CISG

The second specific issue for this paper to discuss is the rate at which interest should be awarded under Article 78.

A. Overview of the Problem

Although Article 78 CISG states an obligation to pay interest on arrears, it does not determine the amount of interest to be paid [49]. Since the CISG does not state a specific interest rate in other provisions either, obviously there is a gap in the Convention [50]. Accordingly, the question has been raised whether the drafters´ omission of a specific interest rate in the CISG has to be dealt with as a "lacuna praeter legem" or as a "lacuna intra legem" [51]. While the former type of gap relates to issues that are governed by, but not expressly settled in the Convention, the latter type of gap refers to issues that fall completely outside the scope of the Convention [52].

This distinction between "lacunae intra legem" and "lacunae praeter legem" has important consequences when one tries to fill the gaps. If a gap is to be treated as relating to an issue that is governed by the Convention but not expressly settled in it, Article 7(2) CISG applies [53]. According to this provision, "lacunas praeter legem" are to be settled in conformity with the general principles on which the Convention is based [54]. Only when such principles cannot be determined, gaps of this kind may be filled by recourse to "the law applicable by virtue of the rules of private international law" [55]. Gaps "intra legem", on the other hand, are not governed by the Convention, and, thus, may be settled only by reference to the law otherwise applicable which, again, is to be determined according to the rules of private international law of the forum [56].

Legal scholars and courts of different nations are in dispute on the question whether the lack of an interest rate in the Convention has to be treated as a "lacuna praeter legem" or a "lacuna intra legem" [57]. However, even if one proceeds from the assumption that the issue of interest rates is governed by the CISG, and, thus, Article 7(2) CISG applies, it is not clear if there are any general principles in the Convention that may help to determine the applicable interest rate [58]. Again, courts and legal scholars split on this point.

B. The Different Approaches to Determine the Rate of Interest

The following subsections intend to summarize the main approaches that legal scholars and courts in different nations have proposed to determine the applicable rate of interest.

1. Law Applicable to the Contract in Absence of CISG Determined by the Private International Law of the Forum

Most European courts have determined the rate of interest according to the law that would govern the contract in the absence of the CISG. In order to determine the law applicable to the contract, these courts and scholars refer to the forum´s rules of private international law [59]. This also seems to be the approach favored by most legal scholars [60]. However, it is not always clear whether these opinions treat the issue as a gap "intra legem" or a gap "praeter legem". Some courts have expressly referred to Article 7(2) CISG concluding that there is no uniform principle stated in the Convention regarding the amount of interest. [61] Consequently, these courts are of the opinion that the issue of interest rates is governed by the Convention in the first place and, hence, a gap "praeter legem" exists [62]. Other courts, however, apply the forum´s rule of private international law to determine the law applicable in absence of the CISG without reference to Article 7(2) [63]. These decisions apparently treat the issue of interest rates as a matter not governed by the Convention, i.e., as a lacuna intra legem.

2. Law of the Creditor´s Place of Business

Other courts and tribunals have held that the issue of interest rates is governed by the law of the creditor´s place of business [64]. Again, these decisions often do not expressly state if the issue of interest rates is a matter governed by, but not settled in, the Convention. Moreover, the courts´ reference to the creditor´s place of business sometimes may be misleading. In an action for recovery of the purchase price, the German Landgericht Stuttgart, for example, stated that the determination of the appropriate interest rate should be governed by the law of the creditor´s place of business [65]. At the same time, however, the court made a reference to Article 28(2) Einführungsgesetz zum Bürgerlichen Gesetzbuch [EGBGB] [66]. As a part of German private international law, this provision determines which law is applicable to contracts in general [67]. Absent a contractual agreement, Article 28(2) EGBGB requires the application of the seller´s place of business [68]. Since in actions for the purchase price the law of the creditor´s and the seller´s place of business are identical, it is not always clear whether courts that purport to apply the law of the creditor´s place of business, do not actually apply the law applicable to the contract in general.

On the other hand, an Austrian arbitration court held that the issue of interest rates is a matter governed by the Convention [69]. Applying Article 7(2), 1st part CISG, the court decided that the issue of interest rates is to be settled "autonomously in conformity with the general principles underlying the Convention" [70]. The court found such a general principle in the application of the law of the creditor´s place of business with respect to the payment currency [71]. At least one legal scholar also favors this approach [72]. However, unlike the Landgericht Stuttgart in its decision mentioned above, the Austrian court did not apply the statutory rate of the creditor´s place of business, but instead referred to the "prime borrowing rate" for US dollars in Germany [73]. A similar approach was taken in two decisions issued by a court in Belgium which applied the average lending rate at the creditor´s place of business [74].

3. Law of Payment Currency

Other courts and legal scholars have suggested to refer to the law of the currency in which payment of the purchase price has to be made [75]. Again, it is sometimes not entirely clear if these opinions view the lack of a specific interest rate as gap "intra legem" or a gap "praeter legem". Whereas, for example, the Arbitration Court attached to the Hungarian Chamber of Commerce and Industry expressly referred to Article 7(2), 2nd part CISG [76], thereby indicating that it views the matter as governed, but not settled by the Convention, the International Chamber of Commerce in its Arbitration Award 7585/92 is silent on this matter [77].

4. Usage

Only few courts which have held that the issue of interest rates is a matter governed by, but not settled in the Convention, actually attempted to find a uniform solution under Article 7(2), 1st part CISG. An Argentine court, for example, held that the accrual of interest should be regulated by a usage widely known and regularly observed in international sale [78]. Referring to Article 9 CISG, the court found that under international trading customs in Argentina the interest for due payments to be made in US currency is the "Prime Rate", at that time 10% [79]. At least one legal writer also favors this approach [80].

In its Arbitration Award No. 6653/93, on the other hand, the International Chamber of Commerce held that under Article 7(2), 1st part CISG the interest rate currently used in international trade with respect to the payment currency should be applied [81]. The arbitrators found such an interest rate in the London Interbank Offered Rate ("LIBOR") [82], a reference interest rate that is widely used by international banks for money transactions in London [83].

5. General Principle of Full Compensation

In search of a uniform solution to the issue in question, some authors have suggested that one of the general principles of the Convention is the principle of full compensation [84]. Therefore, these authors argue, an interest rate should be chosen that fully compensates the aggrieved party [85]. Consequently, these authors propose to calculate the interest under Article 78 by means of the aggrieved party´s actual credit costs [86].

6. Lex Fori

Some courts have simply applied the law of the forum to determine the interest rate in a specific case [87]. In its judgment of November 19, 1992, for example, a lower German court held that it could see no reason why the law of the forum should not be applicable to the issue of interest rates [88]. Similarly, an Italian court applied the Italian statutory interest rate without referring to Article 78 CISG even though the Convention was held to be applicable [89]. Finally, in Delchi v. Rotorex the US District Court of New York held that Article 78 CISG did not determine a specific interest rate and that the award of damages, therefore, was discretionary with the court [90]. The court applied the United States Treasury Bill rate as set forth in 28 U.S.C. § 1961(a) and awarded interest in accordance with this provision [91]. Apparently, the court referred to 28 U.S.C. § 1961(a) because it was the law of the forum [92]. On appeal, the Circuit Court agreed with this part of the judgment without further comment [93]. Neither of these decisions stated any rationale for the application of the lex fori. However, at least one legal author also favors this approach [94].

7. Other Approaches

There are even more suggestions as to the determination of an appropriate interest rate under Article 78 CISG. The International Chamber of Commerce, for example, in its Arbitration Award No. 7153 restated the common approach that the interest rate should be determined according to national law designated by the rules of private international law [95]. Then, however, the arbitrators did not refer to the law applicable to the contract in the absence of the CISG but looked at the place of payment under Article 57 CISG to determine the applicable law [96].

Another approach that has been suggested by some German authors is to determine the interest rate according to the law of the debtor´s place of business [97].

Finally, several authors favor the application of UNIDROIT Principle 7.4.9(2) which provides that the applicable interest rate shall be the average bank short-term lending rate to prime borrowers prevailing for the currency of payment at the due place of payment or, in the absence of such a rate, the rate fixed by the law of the state in which the payment has to be made [98].

C. Analysis

After the foregoing description of the prevalent approaches regarding the interest rate under Article 78, in the following section this paper attempts to determine the most appropriate approach.

1. Appropriate Method to Find the Best Approach to Determine the Interest Rate

As demonstrated above, there is a considerable number of decisions dealing with the issue of determining the appropriate interest rate under Article 78 CISG. However, only few of these decisions engage in a thorough discussion of the problem in question. Especially, very few decisions expressly state if they view the lack of a specific interest rate in Article 78 as a gap "intra legem" or a gap "praeter legem". Although this question might not have great relevance from these decisions´ point of view, technically, a three-prong approach should be applied:

In order to determine the appropriate interest rate one should first decide if the issue of interest rates is governed by the Convention at all. If the answer to this question is in the affirmative, Article 7(2) CISG applies [99]. Before determining the law applicable to the issue of interest rates by invoking the rules of private international law of the forum, Article 7(2) CISG requires the decisionmaker to determine whether there are any general principles in the Convention providing guidance to the issue in question. Only if such principles cannot be found, the private international law of the forum may be invoked [100]. If, on the other hand, the issue of interest rates is not governed by the Convention, i.e., if a gap "intra legem" exists, the applicable interest rate must be determined by the rules of private international law without looking at the "general principles" of Article 7(2) CISG first [101]. In either case, if one has found that the appropriate interest rate should be determined by private international law rules, one must further choose a specific connecting factor, i.e., decide whether the issue of interest rates should follow the general law applicable to the sales contract or if a specific choice of law rule applies [102]. This, however, is a question that may be only solved by national law since it concerns the non-uniform rules of the forum´s private international law [103]. The subsequent analysis follows the approach described above.

2. "Gap Intra Legem" or "Gap Praeter Legem"?

The first step of the analysis outlined above is to determine if the lack of a specific interest rate in Article 78 CISG constitutes a gap "intra legem" or a gap "praeter legem". However, the Convention itself does not identify any clear criterion to determine when a matter has to be viewed as outside the scope of the Convention as opposed to when the Convention applies to the issue in question but does not expressly resolve it [104].

In this context it is noteworthy that the drafters of the Convention were unable to reach a decision on the issue of interest rates [105]. The reason for this disagreement was, among others, different views on the purpose of interest [106]. Finding a uniform solution was further hindered by the fact that some Islamic laws expressly forbid the accrual of statutory interest [107]. The final language of Article 78, therefore, apparently was a compromise in order to prevent the Convention from failing entirely [108]. From this legislative history it may be inferred that the drafters of the Convention intentionally left the determination of an interest rate unsettled [109]. For example, as the legislative history reveals, the German proposal to include a fixed interest rate in the Convention was expressly rejected [110]. However, in order to determine whether the lack of an fixed interest rate in the Convention constitutes a gap praeter legem or a gap intra legem, the legislative history appears to be of not much avail [111]. This conclusion is based on the fact that the drafters also rejected the British proposal to expressly leave the determination of an interest rate to the law made applicable by the rules of international private law [112]. This rejection may suggest that the drafters saw the question at issue not outside the scope of the Convention but rather wanted it to be governed by Article 7(2) CISG. In any event, the legislative history appears to be unclear as to this matter.

In a case of such doubt as to the drafters´ intent, one should bear in mind that the purpose of the CISG, like every international convention, is to provide uniformity in a specific area of law [113]. Therefore, recourse to the non-uniform national law of the Contracting States should be the last resort [114]. This maxim should also apply to the determination of whether an issue is outside the scope of the Convention. Moreover, Article 4 gives at least some hints as to the issue in question [115]. This provision states that the "Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract". From this, one may conclude that substantive sales law questions, such as the obligation to pay interest, usually should be governed by the Convention [116].

Accordingly, one should proceed from the assumption that the drafters did not want to preclude courts from attempting to find a uniform solution under Article 7(2), 1st part CISG to the issue in question [117]. Therefore, the determination of an appropriate interest rate does not fall outside the scope of the Convention but is rather governed by the CISG although not expressly settled in it [118]. Consequently, Article 7(2) CISG applies [119].

3. Uniform Solution or Private International Law Approach?

The next step in determining an appropriate interest rate under Article 78 is to decide whether there are any "general principles" which may provide guidance to resolve the issue in question (Article 7(2), 1st part CISG), or whether one must have recourse to the national law determined by the private international law rules of the forum (Article 7(2), 2nd part CISG). Again, the Convention does not expressly state what is meant by "general principles". Therefore, those principles may be sometimes hard to identify [120]. In any event, however, the requirement set forth in Article 7(2) to choose between one of the possibilities just mentioned as well as the nature of the Convention as a uniform body of law precludes the courts from just simply applying the law of the forum [121]. Since the courts and legal authors who have chosen this approach [122] neither discuss the necessity to search for a uniform solution first nor bother to have recourse to the forum´s international private law before applying the substantive lex fori, this approach should not be followed [123].

a)"General Principles"

Turning to the question whether there are any general principles in the Convention that may be helpful in determining an appropriate interest rate, one should first of all note that the expression "general principles" means both substantive law principles as well as conflict of laws principles [124]. In fact, many of the courts and legal scholars who purport to apply "general principles" under Article 7(2), 1st part CISG to determine the applicable interest rate do not create a uniform substantive law rule, but rather rely on a uniform conflict of laws rule [125]. This is -- at least in part -- true for the approaches which favor the application of the law of the payment currency, the law of the creditor, or the law of the debtor [126].

aa) Usage

However, before one has recourse to a uniform conflict of laws rule, one should first decide whether any "substantive" general principles may provide guidance as to the law applicable to interest rates under Article 78 [127]. One of those substantive general principles may be inferred from Article 9 CISG [128]. Absent any special agreement as to usage, Article 9(2) states that a sales contract under CISG is subject to a "usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned". Therefore, if such a kind of usage applicable to the parties´ contract provides a specific interest rate, this usage should be used to supplement Article 78 [129].

bb) LIBOR

The general application of an interest rate that is used in specific international trade transactions, such as the LIBOR, is more problematic, however. As stated above, gaps in the Convention may be filled "in conformity with the general principles on which it is based" [130]. There is no indication, however, that the Convention was based on the external interest rates of the LIBOR. Furthermore, the LIBOR may not be introduced to the Convention by classifying it as a "usage" under Article 9(2) CISG either. As stated above, "usage" under Article 9(2) CISG requires that the usage is regularly observed by parties to contracts of the type involved in the particular trade concerned [131]. The LIBOR, however, is the rate at which banks in the London market offer dollar deposits to each other [132]. Whether parties to regular international sales transactions have reason to know of the LIBOR is therefore doubtful. To extend the application of the LIBOR to all international sales transactions, thus, would stretch the meaning of "usage" under Article 9(2). Although the application of the LIBOR would have the advantage of guaranteeing uniformity to the issue in question, this solution, therefore, is not compatible with Article 7 CISG because there is no "general principle" to this effect [133].

cc) Full compensation vs. unjust enrichment

Where there is no trade usage providing an appropriate interest rate, one has to look for other "general principles". In this context, it has been suggested that one "general principle" on which the Convention is based is the principle of full compensation [134]. Therefore, the courts and legal writers supporting this approach argue, that an interest rate should be chosen that fully compensates the aggrieved party [135]. The aggrieved party, thus, should be awarded interest based on the its credit costs [136]. Arguably, however, these courts and writers misunderstand the underlying purpose of Article 78. In fact, one could argue that Article 78 intends to prevent an undue enrichment on the debtor´s part [137]. The debtor, therefore, should not be permitted to make use of an amount of money that the creditor is entitled to [138]. Accepting this purpose of Article 78, the creditor, then, should only be entitled to interest at the rate at which the debtor could normally invest the money [139]. Since the debtor under normal circumstances invests money in his own country, the interest rate of that country should apply [140].

However, although the idea of unjust enrichment might underlie the special interest provision of Article 84(1), the inclusion of this provision in the Convention may indicate at the same time that the drafters saw a difference between the situations governed by Article 84(1) and the general interest provision of Article 78. In light of Article 74 which is designed to award recovery of suffered losses, and Article 75 which calculates compensation by the cost of a substitute transaction [141], there are, therefore, good reasons to assume that a general principle underlying the Convention is, in fact, the principle of compensation of the creditor rather than the principle of preventing undue enrichment on the debtor´s part [142].

Arguably, the application of the general principle of compensation to the issue in question negates the line between damages and interest which Article 78 has expressly drawn [143]. Whether this argument is persuasive, is doubtful, however. During the Vienna conference there were major disagreements over the question of whether interest in general should be viewed as part of damages, or if the right to interest should be independent from the right to damages [144]. By including the separate provision of Article 78 in the Convention, the drafters voted for the latter alternative [145]. However, the creation of a separate provision merely shows that interest shall be awarded even if the requirements of the Convention´s damages provisions are not fulfilled [146]. It does not, however, say anything about the rate at which interest should be awarded. Accordingly, this paper suggests that the principle of compensating the creditor underlies Article 78 CISG [147]. Therefore, the determination of an appropriate interest rate should generally focus on the creditor [148].

b) Impact of payment currency

However, even if one proceeds from the assumption that a creditor-focused approach is appropriate, one should take into account that interest rates are usually linked to the rate of inflation [149]. Therefore, if the creditor is located in a country with a "weak" currency, the interest rate in this country for the country´s currency usually is high [150]. If the creditor is located in a country with a "strong" currency, the interest rate in that country for that country´s currency is low [151]. Accordingly, if the sum in question is to be paid in the creditor´s currency, the creditor´s law should apply because its interest rates compensate the creditor best for the delay of payment [152]. If, however, the creditor is located in a country with a "weak" currency and the payment currency is "strong", the creditor is not harmed as much by the delay of payment as it would be when the payment currency was "weak", especially when the creditor did not have to replace the sum in question by borrowing additional funds [153]. This consequence results from the fact that the "strong" currency is subject to much less inflation than the "weak" currency. To award the creditor in addition to the lesser inflation rate the high interest rate of its country for that country´s currency may result in overcompensation and, thus, may lead to unjust results [154]. Accordingly, this paper suggests that in determining an appropriate interest rate under Article 78, one also should take the payment currency into account [155].

c) Statutory vs. average commercial interest rate

Finally, this paper suggests that an average commercial interest rate should prevail over the statutory interest rate [156]. First of all, statutory interest rates make no difference between home and foreign currency and, thus, may not reflect on a foreign currency´s inflation rate [157]. Secondly, whereas statutory interest rates usually stay in force for a longer period of time, commercial interest rates are altered on a regular basis and, therefore, usually reflect the inflation rate [158]. They are, thus, better suited to properly compensate the creditor [159]. Usually, however, there are two different interest rates for borrowing and depositing money. Therefore, the question may be raised which of the two commercial rates should apply. In this context it is important to recall once again that the general principle underlying Article 78 is to compensate the creditor for its loss. Therefore, if the creditor was forced to borrow money from a bank, the prevailing commercial borrowing rate should apply [160]. If, however, the creditor did not have to borrow money, it is nevertheless entitled to the interest it lost by not being able to invest the money owed to it. This interest is best reflected by the prevailing commercial deposit or savings rate [161].

d) Approach to determine the appropriate interest rate

The foregoing analysis results in the following approach: If the creditor was forced to replace the money the debtor owes to him by borrowing funds, the creditor should be compensated for that loss. Accordingly, the average commercial borrowing rate in the country of the creditor´s place of business with regard to the payment currency should apply. However, if the creditor did not have to borrow funds, the foregoing approach might cause unjust results due to the interplay between interest and inflation rates. Accordingly, interest should be awarded according to the average commercial savings or deposit rate in the country of the payment currency.

This approach has several advantages. First, it guarantees that the creditor is reasonably compensated for the loss arising from the debtor´s withholding the money and, thus, serves the purpose underlying Article 78. Second, it avoids arbitrary results which may arise from the simple application of the substantive lex fori or the forum´s conflict of law rules and, therefore, guarantees a uniform solution in accordance with Article 7 CISG. In focusing on all relevant factors, it attempts to guarantee fair and reasonable results.

V. Summary and Final Conclusions

As shown in this paper, the disputes surrounding Article 78 CISG result in great uncertainties [162]. Different courts, therefore, may reach different results in similar cases, a fact which Article 7(1) of the Convention expressly intends to prevent. Consequently, Article 78 should be amended. The amended version should at least provide guidelines as to how to resolve the questions discussed in this paper. However, since the delegates to the Vienna Conference in 1980 could not agree on such uniform solutions, an amendment to Article 78 appears to be unlikely [163]. Accordingly, parties to international sales contracts can only be urged to include provisions specifying the situations calling for interest and determining a specific interest rate in their contract [164].

Absent such a provision, this paper has shown that Article 78 should also apply to unliquidated damages. Moreover, the interest rate under Article 78 should be determined first by the application of an applicable trade usage. Absent such usage, if the creditor was forced to replace the money the debtor owes to him by borrowing funds, the average commercial borrowing rate in the country of the creditor´s place of business with regard to the payment currency should be applied. If the creditor did not have to borrow funds, interest should be awarded according to the average commercial savings rate in the country of the payment currency.


FOOTNOTES

1. See Joanne M. Darkey, A U.S. Court´s Interpretation of Damage Provisions Under the U.N. Convention On Contracts for the International Sale of Goods: A Preliminary Step Towards an International Jurisprudence of CISG or a Missed Opportunity?, 15 J. L. & Com. 139, 149 (1995).

2. Arbitration Award SCH 4318, Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft Wien (15 June 1994) (Austria) available in UNILEX, A Comprehensive and "Intelligent" Data Base on the U.N. Convention on Contracts for the International Sale of Goods (CISG), Transnational Juris Publications, Inc., Irvington, N.Y. [hereinafter UNILEX].

3. Burghard Piltz, Neue Entwicklungen im UN-Kaufrecht, Neue Juristische Wochenschrift [NJW] 42 (1996), 2768, 2772.

4. Rolf Herber & Beate Czerwenka, Internationales Kaufrecht, Art. 78, note 2 (1991).

5. Hans Hermann Eberstein & Klaus Bacher in Ernst von Caemmerer & Peter Schlechtriem, Kommentar zum Einheitlichen UN-Kaufrecht, Art. 78, note 8 (2nd ed. 1996).

6. Id. at Art. 78, note 16.

7. Id. at Art. 78, note 35.

8. Id.

9. Ulrich Magnus in J. von Staudinger, Kommentar zum Bürgerlichen Gesetzbuch, CISG, Art. 78, note 9 (13th ed. 1994).

10. Judgment 9 O 85/92, Landgericht Verden (8 February 1993) (Germany), available in <http://www.jura.uni-freiburg.de/ipr1/cisg>, CISG online case no. 77 (visited 20 November 1998).

11. Article 84(1) CISG.

12. Herber & Czerwenka, supra note 4, at Art. 78, note 3.

13. Helga Rudolph, Kaufrecht der Export- und Importverträge, Art. 78, note 1 (1996); Judgment 9 O 85/92, supra note 10; Judgement 103 O 70/92, Landgericht Berlin (6 October 1992) (Germany), available in <http://www.jura.uni-freiburg.de/ipr1/cisg>, CISG online case no. 173 (visited 20 November 1998); Judgment 1 C 216/92, Amtsgericht Zweibrücken (14 October 1992) (Germany), available in <http://www.jura.uni-freiburg.de/ipr1/cisg>, CISG online case no. 46 (visited 20 November 1998).

14. Herber & Czerwenka, supra note 4, at Art. 78, note 4.

15. Article 78 CISG.

16. Herber & Czerwenka, supra note 4, at Art. 78, note 8; Judgment 41 O 198/89, Landgericht Aachen (3 April 1990) (Germany), available in <http://www.jura.uni-freiburg.de/ipr1/cisg>, CISG online case no. 12 (visited 20 November 1998); Judgment 6 U 152/95, Oberlandesgericht Düsseldorf (11 July 1996) (Germany), available in <http:// www.jura.uni-freiburg.de/ipr1/cisg>, CISG online case no. 201 (visited 20 November 1998); see also Judgment 5 U 15/93, Oberlandesgericht Frankfurt (18 January 1994) (Germany), available in <http:// www.jura.uni-freiburg.de/ipr1/cisg>, CISG online case no. 123 (visited 20 November 1998).

17. Magnus, supra note 9, at Art. 78, note 19.

18. See, e.g., Judgment 3 C 925/93, Amtsgericht Kehl (6 October 1995) (Germany), available in <http://www.jura.uni-freiburg.de/ipr1/cisg>, CISG online case no. 162 (visited 20 November 1998); Judgement 31 C 534/94, Amtsgericht Alsfeld (12 May 1995) (Germany), available in <http://www.jura.uni-freiburg.de/ipr1/cisg>, CISG online case no. 170 (visited 20 November 1998); Judgment O 42/92, Landgericht Heidelberg (3 July 1992) (Germany), available in <http://www.jura.uni-freiburg.de/ipr1/cisg>, CISG online case no. 38 (visited 20 November 1998).

19. Delchi Carrier, Spa v. Rotorex Corp, available in Westlaw at 1994 WL 495787 (1994).

20. Id. at 6.

21. Id.

22. Arbitration Award SCH 4318, supra note 2.

23. Id.

24. See Magnus, supra note 9, at Art. 78, note 8; John O. Honnold, Uniform Law For International Sales Under the 1980 United Nations Convention, Art. 78, note 422 (2d ed. 1991); Fritz Enderlein & Dietrich Maskow, International Sales Law 313-314 (1992).

25. See Eberstein & Bacher, supra note 5, at Art. 78, note 12.

26. Eberstein & Bacher, supra note 5, at Art. 7, notes 6-9.

27. Eric C. Schneider, Consequential Damages in the International Sale of Goods: Analysis of Two Decisions, 16 U. Pa. J. Int´l. Bus. L. 615, 646 (1995).

28. See Honnold, supra note 24, at Art. 78, note 422.

29. See, e.g., Rolf Herber in: von Caemmerer & Schlechtriem, supra note 5, at Art. 7, note 16.

30. See Gert Reinhart, Fälligkeitszinsen und UN-Kaufrecht, Praxis des Internationalen Privat- und Verfahrensrechts [IPRax] 6 (1991), 376, 377.

31. Article 7(1) CISG.

32. Herber & Czerwenka, supra note 4, at Art. 7, note 7.

33. Id. at Art. 7, notes 8-9.

34. Schneider, supra note 27, at 647; Magnus, supra note 9, at Art. 78, note 8; Honnold, supra note 24, at Art. 78, note 422.

35. See Eberstein & Bacher, supra note 5, at Art. 78, note 12.

36. Id.

37. Id.; see also Arthur Rosett, Critical Reflections on the United Nations Convention on Contracts for the International Sale of Goods, 45 Ohio St. L.J. 265, 298 (1984).

38. See Jeffrey S. Sutton, Measuring Damages Under the United Nations Convention on the International Sale of Goods, 50 Ohio St. L.J., 737, 750 (1989).

39. See Herber & Czerwenka, supra note 4, at Art. 78, note 4.

40. Id.

41. John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, Art. 78, note 422 (1st ed. 1982).

42. See id.; see also Honnold, supra note 24, at Art. 78, note 422.

43. See for the legislative history of Art. 78 CISG John Honnold, Documentary History of the Uniform Law for International Sales at 190, 205, 232, 238, 253, 353, 609-613, 636-640, 650-651, 709-710, 722, 731, 744-745, 758-761.

44. Karl H. Neumayer, Offene Fragen zur Anwendung des Abkommens der Vereinten Nationen über den internationalen Warenkauf, Recht der internationalen Wirtschaft [RIW] 2 (1994), 99, 106.

45. Id.

46. Honnold, supra note 24, at Art. 78, note 421.

47. See Eberstein & Bacher, supra note 5, at Art. 78, note 12; Herber & Czerwenka, supra note 4, at Art. 78, note 2; Peter Schlechtriem, Internationales UN-Kaufrecht 180 (1996); see also Judgment 54 O 644/94, Landgericht Landshut (4 May 1995) (Germany), available in UNILEX, supra note 2.

48. This conclusion is also reached by Eberstein & Bacher, supra note 5, at Art. 78, note 12; Herber & Czerwenka, supra note 4, at Art. 78, note 2; Schlechtriem, supra note 47, at 180; see also Judgment 54 O 644/94, supra note 47.

49. See Peter Schlechtriem, From the Hague to Vienna - Progress in Unification of the Law of International Sales Contracts? in Nobert Horn & Clive M. Schmitthoff, The Transnational Law of International Commercial Transactions 125, 132 fn. 21 (1984).

50. Judgment C41 O 111/95, Landgericht Aachen (20 July 1995) (Germany), available in UNILEX, supra note 2.

51. Franco Ferrari, Uniform Application and Interest Rates Under the 1980 Vienna Sales Convention, 24 Ga. J. Int´l & Comp. L. 467, 475 (1995).

52. Franco Ferrari, Specific Topics of the CISG in the Light of Judicial Application and Scholarly Writing, 15 J.L. & Com. 1, 120 (1995).

53. Herber & Czerwenka, supra note 4, at Art. 78, note 10.

54. Id. at Art. 78, note 15.

55. Id.

56. Herber & Czerwenka, supra note 53, at Art. 78, note 10.

57. See Ferrari, supra note 51, at 475.

58. See Eberstein & Bacher, supra note 5, at Art. 78, note 22.

59. See e.g., Judgment 5 O 543/88, Landgericht Hamburg (26 September 1990) (Germany), available in Rudolph, supra note 13 (disk); Judgment 5 C 73/89, Amtsgericht Oldenburg (24 April 1990) (Germany), available in Rudoplph, supra note 13 (disk); Judgment C41 O 111/95, supra note 50; Judgment 8 O 2391/93, Landgericht Kassel (22 June 1995) (Germany), abstract available in UNILEX, supra note 2; Arbitration Award, Schiedsgericht der Handelskammer Hamburg (21 March 1996) (Germany), available in <http://www.jura.uni-freiburg.de/ipr1/cisg>, CISG online case no. 187 (visited 20 November 1998); Judgment 2 U 31/96, Oberlandesgericht Koblenz (31 January 1997) (Germany), available in <http://www.jura.uni-freiburg.de/ipr1/cisg>, CISG online case no. 256 (visited 20 November 1998); Imar v. Protech Horst, Rechtsbank Roermond (5 June 1993) (The Netherlands), available in UNILEX, supra note 2; Galerie Moderne v. Waal, Rechtsbank Amsterdam (15 June 1994) (The Netherlands), available in UNILEX, supra note 2; Adamfi Video Production GmbH v. Alkotók Studiósa Kisszövetkezet, Muncipal Court Budapest (24 March 1992) (Hungary), abstract available in Case Law on UNICITRAL Texts (hereinafter: CLOUT), Case No. 52; Arbitration Award VB 96074, Arbitration Court attached to the Chamber of Commerce & Industry Budapest (10 December 1996) (Hungary), available in <http://cisgw3.law.pace.edu/cases/961210h1.html> (visited 20 November 1998); Judgment A3 1993 84, Kantonsgericht Zug (1 September 1994) (Switzerland), abstract available in UNILEX, supra note 2; Judgment 12.95.00300, Appellationsgericht Tessin (12 February 1996) (Switzerland), abstract available in UNILEX, supra note 2.

60. See, e.g. Reinhart, supra note 30, at 379; Ferrari, supra note 52, at 477; Leif Sevón, Obligations of the Buyer Under the UN Convention On Contracts For the International Sale of Goods in Petar Sarcevic & Paul Volken, International Sale of Goods: Dubrovnik Lectures 203, 230 (1986).

61. See, e.g. Judgment 5 O 543/88, supra note 59; Arbitration Award 7565/94, International Chamber of Commerce (1994), available in UNILEX, supra note 2; Marmipedretti Graniti S.r.l. v. Nichini SA Pierres naturelles et artficielles, Tribunal Cantonal Valais (20 December 1994) (Switzerland), Revue valaisanne de jurisprudence (RVJ)/Zeitschrift für Walliser Rechtsprechung (ZWR), 1995, 164-167; see also Alexander Vida, Zur Anwendung des UN-Kaufrechtsübereinkommens in Ungarn, Praxis des Internationalen Privat- und Verfahrensrechts [IPRax] 4 (1993), 263, 264.

62. See, e.g. Judgment 5 O 543/88, supra note 59.

63. Judgment 5 U 261/90, Oberlandesgericht Frankfurt am Main (13 June 1991) (Germany), available in Rudolph, supra note 13 (disk); Judgment 7 U 4419/93, Oberlandesgericht München (2 March 1994) (Germany), available in Rudolph, supra note 13 (disk); Judgment HG 930138, Handelsgericht Zürich (9 September 1993) (Switzerland), available in UNILEX, supra note 2; Judgment BG 341/1994, Bezirksgericht Arbon (12 December 1994) (Switzerland), available in UNILEX, supra note 2; Foliopack AG v. Daniplast S.p.A., Pretura circondariale di Parma (24 November 1989) (Italy), abstract available in CLOUT, supra note 59, Case No. 90.

64. Judgment 3/11 O 3/91, Landgericht Frankfurt am Main (16 September 1991) (Germany), available in UNILEX, supra note 2; Judgment 3 KfH O 97/89, Landgericht Stuttgart (31 August 1989) (Germany), available in Rudolph, supra note 13; Arbitration Award 7331/94, International Chamber of Commerce (1994), available in UNILEX, supra note 2.

65. Judgment 3 KfH O 97/89, supra note 64.

66. Id.

67. See id.

68. See id.

69. Arbitration Award SCH 4318, supra note 2.

70. Id.

71. Id.

72. See, e.g., Maria del Pilar Perales Viscasillas, UNIDROIT Principles of International Commercial Contracts: Sphere of Application and General Provisions, 13 Ariz. J. Int´l & Comp. L. 381, 405 (1996).

73. Compare Arbitration Award SCH 4318, supra note 2, with Judgment 3/11 O 3/91, supra note 64.

74. Ca´del Bosco v. Francesco, Rechtbank van Koophandel (8 November 1995) (Belgium), 40 Rechtskundig Weekblad 1378-1379 (1996); Margon S.r.l. v. N.V. Sadelco, Rechtsbank van Koophandel (9 October 1996) (Belgium), case presentation available in <http://cisgw3.law.pace.edu/cases/961009b1.html> (visited 20 November 1998).

75. Arbitration Award 7585/92, International Chamber of Commerce (1992), available in UNILEX, supra note 2; Arbitration Award VB/94134, Arbitration Court attached to the Hungarian Chamber of Commerce (17 November 1995), abstract available in UNILEX, supra note 2; Arbitration Award VB/94131, Arbitration Court attached to the Hungarian Chamber of Commerce & Industry (5 December 1995) (Hungary), available in <http://www.jura.uni-freiburg.de/ipr1/cisg>, CISG online case no. 163 (visited 20 November 1998); see also Peter Schlechtriem, Anmerkung zu Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft in Österreich, Recht der internationalen Wirtschaft [RIW], 7 (1995), 592, 594.

76. Arbitration Award VB/94134, supra note 75.

77. Arbitration Award 7585/92, supra note 75.

78. Sacifia v. Bettcher Industries, Juzgado Nacional de Primera Instancia en lo Comercial (20 May 1991) (Argentinia), abstract available in UNILEX, supra note 2; see also Burghard Piltz, Neue Entwicklungen im UN-Kaufrecht, Neue Juristische Wochenschrift [NJW], 17 (1994) 1101, 1105.

79. See Piltz, supra note 78, at 1105.

80. See Eva Diederichsen, Commentary on Journal of Law & Commerce Case I: Oberlandesgericht Frankfurt am Main, 14 J.L. & Com. 177, 181 (1995).

81. Arbitration Award 6653/93, International Chamber of Commerce (1993), available in UNILEX, supra note 2. This decision was later reversed by the Cour d´Appel de Paris in Société Thyssen Stahlunion GmbH v. Maaden General Foreign Trade Organisation for Metal & Building Materials (6 April 1995), abstract available in UNILEX, supra note 2, on the grounds that the Convention was silent on the way in which the rate of interest is determined, and that the decision to apply the LIBOR rate had be taken by the arbitrators without the parties being given the possibility to make their defense on that point, whereas the international trade usage invoked by the buyer did not provide rules to determine the applicable rate.

82. Id.

83. Eberstein & Bacher, supra note 5, at Art. 78, note 24 fn. 35.

84. Phanesh Koneru, The International Interpretation of the U.N. Convention On Contracts For the International Sale of Goods: An Approach Based On General Principles, 6 Minn. J. Global Trade 105, 125 (1997); Darkey, supra note 1, at 150; see also Dominique Hascher, Commentary on Journal of Law and Commerce Case III: International Court of Arbitration, Matter No. 7153 in 1992, 14 J. L. & Com. 220, 224 (1995); James J. Callaghan, U.N. Convention On Contracts For the International Sale of Goods: Examining the Gap-Filling Role of CISG in Two French Decisions, 14. J.L. & Com. 183, 200 (1995).

85. See, eg., Darkey, supra note 1, at 150.

86. Id.

87. Delchi, supra note 19, at 7; Judgment 3 O 100/92, Landgericht Göttingen (19 November 1992) (Germany), available in UNILEX, supra note 2.

88. Judgment 3 O 100/92, supra note 87.

89. Foliopack, supra note 63.

90. Delchi, supra note 87, at 7.

91. Id.

92. See Delchi, commented abstract, available in <http://cisgw3.law.pace.edu/cases/951206u1.html> (visited 20 November 1998); Schneider, supra note 27, at 648.

93. Delchi Carrier, Spa v. Rotorex Corp., 71 F.3d 1024, 1031 (1995).

94. Henry D. Gabriel, Practitioner´s Guide To the Convention On Contracts for the International Sale of Goods 237 (1994).

95. Arbitration Award 7153/92, International Chamber of Commerce (1992), reprinted in 14 J.L. & Comm. 217, 219 (1995).

96. Id.

97. See, eg., Hans Stoll, Internationalprivatrechtliche Fragen bei der landesrechtlichen Ergänzung des einheitlichen Kaufrechts, in Festschrift für Murad Ferid zum 80. Geburtstag 495, 510 (1988).

98. Alejandro M. Garro, The Gap-Filling Role of the UNIDROIT Principles in International Sales Law: Some Comments on the Interplay Between the Principles and the CISG 1149, 1157 (1995); Arthur I. Rosett, The Unidroit Principles of International Commercial Contracts: A New Approach to International Commercial Contracts, 46 Am. J. Comp. L. 347, 354 fn. 9 (1998); Klaus Peter Berger, International Arbitration Practice and the Unidroit Principles of International Commercial Contracts, 46 Am. J. Comp. L. 129, 137 (1998); see generally Ulrich Magnus, Rabels Zeitschrift für ausländisches und internationales Privatrecht [RabelsZ] 59 (1995) 469, 492-493; see critically Franco Ferrari, Das Verhältnis zwischen den UNIDROIT-Grundsätzen und den allgemeinen Grundsätzen internationaler Einheitsprivatrechtskonventionen, Juristenzeitung [JZ] 1 (1998) 9, 16.

99. See Herber & Czerwenka, supra note 4, at Art. 7, note 10.

100. Darkey, supra note 1, at 150.

101. See Herber & Czerwenka, supra note 4, at Art. 7, note 10.

102. Reinhart, supra note 30 , at 378.

103. Schlechtriem, supra note 75, at 593.

104. Ferrari, supra note 51, at 471-472.

105. Grant R. Ackerman, U.N. Convention for the International Sale of Goods, 78-3 (1993).

106. Peter Schlechtriem, Recent Developments in International Sales Law, 18 Isr. L. Rev. 309, 323 (1983).

107. Id.

108. See Perales Viscasillas, supra note 72, at 405; Magnus, supra note 9, at Art. 78, note 4.

109. Herber & Czerwenka, supra note 4, at Art. 78, note 6.

110. Ferrari, supra note 51, at 472; Rosett, supra note 37, at 298.

111. Rosett, supra note 37, at 298.

112. Graham Corney, Obligations and Remedies Under the 1980 Vienna Sales Convention, 23 Queensland L. Soc. J. 37, 56 (1993); Honnold, supra note 41, at Art. 78, note 421; Magnus, supra note 9, at Art. 78, note 4.

113. See Garro, supra note 98, at 1154; Sutton, supra note 38, at 750.

114. See Darkey, supra note 1, at 150; Herber, supra note 29, at Art. 7, note 31.

115. See Honnold, supra note 24, at Art 7, note 98.

116. See Herber & Czerwenka, supra note 4, at Art. 4, note 17.

117. See Perales Viscasillas, supra note 72, at 405.

118. Bettina Frigge, Externe Lücken und Internationales Privatrecht im UN-Kaufrecht (Art. 7 Abs. 2) 55 (1994); see also Judgment 5 O 543/88, supra note 59; Arbitration Award 7565/94, supra note 61.

119. Koneru, supra note 84, at 125.

120. See Rosett, supra note 37, at 299.

121. Herber & Czerwenka, supra note 4, at Art. 7, note 4.

122. See, e.g., Judgment 3 O 100/92, supra note 87.

123. Piltz, supra note 65, at 1105.

124. Reinhart, supra note 30, at 377.

125. See, e.g., Arbitration Award 7331/94, supra note 64 (law of creditor); Arbitration Award VB/94131, supra note 75 (law of payment currency); Arbitration Award 7153/92, supra note 95 (law of place of payment).

126. See Schlechtriem, supra note 75, at 593.

127. See Reinhart, supra note 30, at 377.

128. Herber & Czerwenka, supra note 4, at Art. 7, note 12.

129. Piltz, supra note 78, at 1105; Piltz, supra note 3, at 2772; Diederichsen, supra note 78, at 181; Sacifia, supra note 78.

130. Article 7(2) CISG.

131. Id.

132. Venrice R. Palmer, Negotiating and Drafting Bank Credit Agreements, 930 PLI/Corp 763, 779 (1996).

133. See Volker Behr, The Sales Convention in Europe: From Problems in Drafting to Problems in Practice, 17 J.L. & Com. 263, 297 (1998); Schlechtriem, supra note 75, at 593.

134. Koneru, supra note 84, at 125; Arbitration Award SCH 4318, supra note 2; Darkey, supra note 1, at 150; see also Hascher, supra note 85, at 224.

135. See, eg., Arbitration Award SCH 4366, Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft Wien (15 June 1994) (Austria), available in UNILEX, supra note 2.

136. Darkey, supra note 1, at 150.

137. Neumayer, supra note 44, at 106.

138. Id.

139. Id.

140. Id.

141. Darkey, supra note 1, at 150.

142. See Eberstein & Bacher, supra note 5, at Art. 78, note 24; Herbert Asam & Peter Kindler, Ersatz des Zins- und Geldentwertungsschadens nach dem Wiener Kaufrechtsübereinkommen vom 11. 4. 1980 bei deutsch-italienischen Kaufverträgen, Recht der Internationalen Wirtschaft [RIW] 11 (1989) 841, 842.

143. Ferrari, supra note 51, at 477; Ferrari, supra note 52, at 122.

144. See Honnold, supra note 41, at Art. 78, note 420.

145. Magnus, supra note 9, at Art. 78, note 1.

146. Id.; Ackerman, supra note 105, at 78-3.

147. See also Koneru, supra note 84, at 125.

148. See also Asam & Kindler, supra note 142, at 842; Arbitration Award 7331/94, supra note 64; Arbitration Award SCH 4318, supra note 2; Arbitration Award SCH 4366, supra note 135.

149. Arbitration Award VB/94131, supra note 75; Schlechtriem, supra note 75, at 594.

150. Arbitration Award 7585/92, supra note 75.

151. Eberstein & Bacher, supra note 5, at Art. 78, note 24.

152. See, e.g., Sutton, supra note 38, at 150.

153. Arbitration Award 7585/92, supra note 75.

154. Id.

155. See also Arbitration Award SCH 4318, supra note 2; Arbitration Award VB 94131, supra note 75; Schlechtriem, supra note 75, at 594.

156. See also Arbitration Award SCH 4366, supra note 135; Koneru, supra note 84, at 126.

157. John Y. Gotanda, Awarding Interest in International Arbitration, 90 Am. J. Int´l L. 40, 59 (1996).

158. Id.

159. Sutton, supra note 38, at 150.

160. See, e.g., Koneru, supra note 84, at 126.

161. Gotanda, supra note 157, at 60.

162. See also Callaghan, supra note 84, at 200.

163. See Eberstein & Bacher, supra note 5, at Art. 78, note 25.

164. See, e.g., Peter Winship, Changing Contract Practices in the Light of the United Nations Sales Convention: A Guide For Practitioners, 29 Int´l Law J. 525, 553 (1995).


Pace Law School Institute of International Commercial Law - Last updated July 5, 2001
Comments/Contributions

Go to Database Directory || Go to Bibliography || Go to CISG Case Search Form