[For more current case annotated texts by this author, see Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed. (2003) and Lookofsky, Understanding the CISG in the USA, 2d ed. (2004).]
A. Specific Performance and Forum Law
140. As noted previously, and as more fully developed later in connection with the discussion of remedies for breach, the Convention accepts - as a starting point the logic of Civil law systems with respect to specific performance: if a promisor fails to perform his promise, the most natural means of promise 'enforcement' is to simply require that he perform the promised act: e.g. require that the seller deliver that which has not yet been delivered or (re) deliver goods which conform to the contractual description, or (in the case of buyer's breach) require that the price agreed be paid.[l] But Article 28 sets forth an important general proviso in this regard:
In contrast with Civil law systems, Common law systems have traditionally placed the remedy of specific performance in a low position on the remedial scale, and Article 28 - which was primarily designed to accommodate the Common law view - is evidence of the compromise which the Convention's remedial system represents.
B. Award of Specific Performance: 2-Step Process
141. Article 28 requires that a court (or arbitral tribunal) which is asked to 'require performance' under the Convention engage in a 2-step process. First, it must determine whether the remedial rules in Chapters II or III of Part III themselves would make specific performance available to the injured party in the particular case.[l] Then, if the answer to the first question is yes, the court must proceed to apply the 'safety-valve' test in Article 28.
So, even when a court holds that the applicable (Chapter II or III) Convention rule would require a non-performing party to perform, the court must also consider whether such specific relief would be available pursuant to the domestic sales law of the forum State. And if specific relief would not be so available under the domestic rules, the forum court is 'not bound' to require performance under the Convention.
On the one hand, it may be said that Article 28 tends to maintain domestic conceptions of the proper rule for specific performance, even though the Convention in other respects must be interpreted with the need for international uniformity in [page 81] mind. Then again, it should be remembered that the rule of Article 28 in practice will be severely limited: on the one hand, although the provision might sometimes hamper the effort of a seller still in possession to recover the price, monetary damages will always remain a viable altemative; and an injured buyer will hardly ever seek to enforce the seller's performance by judicial means, in that the remedy of (avoidance) and damages will nearly always be preferred. [page 82]