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2012 UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods

Digest of Article 77 case law [reproduced with permission of UNCITRAL] [*]

[Text of article
Introduction
Relation to other articles
Measures to mitigate
   -  Measures by aggrieved buyers
   -  Measures by aggrieved sellers
Cost of Reasonable Steps
Reduction of damages
Notice of steps to mitigate
Pleading: burden of proof]

Article 77

A party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach. If he fails to take such measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have been mitigated.

INTRODUCTION

1. Article 77 requires an aggrieved party claiming damages to take reasonable steps to mitigate losses; if he fails to do so, the breaching party may claim a reduction in the damages recoverable in the amount by which the loss should have been mitigated. If an aggrieved party does not request damages, whether by way of an affirmative claim or by way of set-off, article 77 does not apply.[1]

Relation to other articles

2. Article 77 appears in Section II (Damages) of Chapter V of Part III, and therefore does not expressly apply to remedies other than damages that are available under the Convention. The cost of taking reasonable steps to mitigate damages may be claimed as part of the aggrieved party's damages claim under article 74.[2]

3. One decision states that the mitigation rule compels the buyer to purchase replacement goods if reasonably possible.[3] The buyer is then entitled to damages calculated with reference to article 75.

4. Other articles of the Convention may require parties to take specific measures to protect against losses. Articles 85 to 88 provide, for example, that buyers and sellers must take reasonable steps to preserve goods in their possession following breach.[4] An arbitral tribunal referred to article 88 in deciding whether a seller acted reasonably in relation to perishable goods.[5]

5. Pursuant to article 6, the seller and buyer may agree to derogate from or vary the formula set out in article 77. One decision concluded that if an aggrieved party seeks to enforce a penalty clause in the contract, article 77 does not require the aggrieved party to reduce the penalty in order to mitigate the loss.[6]

6. Article 77 does not state at what point in a legal proceeding the issue of mitigation must be considered by a court or tribunal. One decision concluded that the question of whether mitigation should be considered in a proceeding on the merits or in a separate proceeding to determine damages is a procedural issue governed by domestic law rather than by the Convention.[7]

Measures to Mitigate

7. An aggrieved party claiming damages must mitigate them by taking those steps that a reasonable creditor acting in good faith would take under the circumstances.[8] If a contract has already been avoided, an aggrieved party's notice to the breaching party of a proposed act to mitigate does not revoke the earlier avoidance.[9] In some circumstances the aggrieved party may be excused from taking such measures (see paragraphs 11 and 14 below).

8. Article 77 does not expressly state when the aggrieved party must take measures to mitigate. Several decisions state that an aggrieved party is not obligated to mitigate in the period before the contract is avoided (i.e. at a time when each party may still require the other to perform).[10] If an aggrieved party does take mitigation measures, however, he must do so within a reasonable time under the circumstances. One decision found that the seller's resale of goods to a third party two months after they had been rejected was reasonable within the context of the fashion industry.[11] Another decision found that the buyer's purchase of substitute goods approximately two weeks after the seller declared that it would not perform was not a failure to mitigate even though the price in a volatile market had risen sharply.[12]

Measures by aggrieved buyers

9. Decisions have found the following measures by aggrieved buyers to be reasonable: concluding cover sales within a reasonable time and at reasonable prices to replace goods that were not delivered;[13] paying another supplier to expedite delivery of already-ordered compressors that could be substituted for defective compressors;[14] contracting with a third-party supplier because of the inability of the breaching party to deliver moulds in time;[15] contracting with a third party to treat leather goods when the seller refused to return tanning machines that it had sold to the buyer and then taken back for adjustments;[16] continuing to print on purchased fabric notwithstanding the discovery of problems with the fabric;[17] requesting special permission from a Government authority to permit re-exportation if the goods proved nonconforming, and proposing to test milk powder in the Free Trade Zone prior to import;[18] using the buyer's own buffer stocks of coal when the seller made late deliveries;[19] proposing to a sub-buyer that the goods the seller delivered late should be accepted with a 10 percent reduction in price;[20] selling perishable goods even though not required to do so by articles 85 to 88;[21] taking reasonable steps to have a stolen car released from an insurance company;[22] accepting a reduction in the purchase price instead of sending the goods back;[23] requesting permission from the buyer to re-sell goods marked with the buyer's trademark, which permission was not given;[24] disassembling a unique machine and selling the parts where the machine could not be used or readily resold.[25]

10. The aggrieved buyer was found to have failed to mitigate damages in the following circumstances: buyer failed to conclude reasonable cover purchases;[26] buyer failed to inspect goods properly and to give documents setting out its claims of non-conformity;[27] buyer failed to examine shipments of aluminium hydroxide before mixing the shipments together;[28] buyer failed to stop the use of vine wax after discovering the wax to be defective;[29] buyer failed to look for replacement goods in markets other than the local region;[30] buyer failed to cancel its contract of sale with sub-buyer or to conclude a substitute purchase;[31] buyer failed to provide evidence of the price it received on its sale of non-conforming goods to a sub-buyer;[32] buyer failed to provide evidence as to whether the buyer could buy the same product from the wholesaler newly-designated by the seller;[33] buyer failed to stop the processing of swimming suits for three days after becoming aware of a faulty manufacturing process;[34] buyer chartered a vessel despite repeated notices that shipment would not take place on time;[35] buyer failed to sell goods due to packing deficiencies until after their expiration date.[36]

11. Several decisions have denied an aggrieved buyer's claim for reimbursement of expenditures because the expenditures did not have the effect of limiting the buyer's loss. One decision declined to award the buyer damages to compensate for the expenses of adapting a machine to process defective wire delivered by the seller because the cost of the adaptation was disproportionate to the purchase price of the wire.[37] An aggrieved buyer was also denied recovery for the costs of translating a manual to accompany the goods when the buyer resold them because the buyer failed to notify the seller, which was a multinational company that would already have had manuals in the language into which the manual was translated.[38] A few decisions have denied the aggrieved party's claim for the cost of enforcing its claim through a collection agent or lawyer.[39] One arbitral tribunal held that the buyer failed to mitigate its loss by failing to avoid the contract and conclude cover sales after it became clear that the seller would not perform.[40]

12. Several decisions have found that the buyer's failure to act did not violate the mitigation principle. One tribunal found that an aggrieved buyer's failure to buy substitute goods from another supplier was justified by the short delivery time in the contract and the alleged difficulty in finding another supplier.[41] A court has also concluded that a buyer did not violate the mitigation principle by its failure to inform the seller that the buyer's sub-buyer needed the goods without delay because it was not established that the buyer knew of the sub-buyer's production plans.[42] One court held that the buyer's refusal to accept the goods at much worse terms from the seller did not result in a failure to mitigate damages.[43] The buyer also did not fail to mitigate by refusing to supply its customers from its own stocks, as those stocks were earmarked for other customers.[44] A court held that where the steps suggested by the seller were merely speculative, it was insufficient to prove that the buyer failed to mitigate its damages.[45]

Measures by aggrieved sellers

13. Decisions have found the following measures by aggrieved sellers to be reasonable: incurring expenses to transport, store, and maintain the undelivered machinery;[46] reselling goods to a third party;[47] reselling the goods to a third party within a short period of time;[48] concluding a substitute sale at the same price at which it obtained the goods, despite evidence that the price was below market price.[49]

14. An aggrieved seller was found to have failed to mitigate damages in the following circumstances: seller drew on a guaranty before avoiding the contract;[50] seller resold the goods at a price below the price offered by the breaching buyer when the latter sought unsuccessfully to amend the contract;[51] seller failed to conclude a substitute sale for more than six months;[52] seller failed to make substitute sales of perishable goods before the goods perished;[53] seller failed to take administrative steps to avoid penalties on foreign currency earnings;[54] seller refused to have goods that were incorrectly packed remeasured, which would have solved the problem;[55] seller bought further raw materials for production despite knowing that buyer would not fulfil the contract;[56] seller caused delays in disposing of the goods.[57] Where a buyer breached by refusing to take delivery of goods, a court has reserved decision on the amount of damages, pending receipt of an expert opinion, where the seller's claim for lost profit and the cost of raw materials used to produce the goods might have been reduced if the seller had been able to resell or reuse the goods, or if the investments seller had made to produce the goods were valued or depreciated in a different fashion.[58]

15. An aggrieved seller was excused from taking steps to mitigate in the following circumstances: the seller did not resell the goods during the period when the breaching party was entitled to demand performance, but was excused on the ground that resale during that period would have made it impossible for the seller to perform the contract;[59] the seller did not resell stockings made to the buyer's particular specifications.[60]

16. One court has stated that an aggrieved seller's damages are not to be reduced under article 77 by the price received in a resale of the goods where the seller had the capacity and market to make multiple sales. The court reasoned that to treat the resale as a substitute transaction under article 75 meant that the seller would lose the profit from a sale that it would have made even if the buyer had not breached.[61]

Cost of Reasonable Steps

17. The cost of taking reasonable steps to mitigate damages may be claimed as part of an aggrieved party's damages claim under article 74. One court awarded the cost of disassembling a machine (in order to resell the parts) as damages to the buyer.[62]

Reduction of Damages

18. A breaching party may claim a reduction in the damages to be awarded to the aggrieved party in the amount by which reasonable mitigation measures would have reduced the loss to the aggrieved party. In one case the court reduced the damages by the extra costs incurred due to the seller waiting for more than six months to conclude a cover sale.[63] In another case the arbitral tribunal reduced the claim for loss of profit by an amount calculated with reference to possible cover purchases.[64] An arbitral tribunal reduced the claim for damages to the cost of the steps that could have been taken to avoid damages.[65] Several decisions have calculated the reduction without specific reference to the loss that could have been avoided. One decision found that the aggrieved buyer who failed to mitigate should be entitled only to 50 percent of the difference between the contract price and the price the buyer received when it resold the non-conforming goods to its customers.[66] An arbitral tribunal divided the loss caused by the buyer's failure to mitigate damages between the aggrieved buyer and the breaching seller who was claiming payment for partial delivery.[67] One arbitral tribunal reduced the claim for loss of profit by 25 percent due to the buyer's failure to take reasonable steps.[68]

Notice of Steps to Mitigate

19. Article 77 does not explicitly require an aggrieved party to notify the other party of proposed steps to mitigate losses. One decision, however, denied a buyer compensation for the cost of translating a manual where the buyer failed to notify the seller that it intended to take this step, reasoning that if the buyer had provided such notice the seller could have supplied existing translations.[69]

Pleading; Burden of Proof

20. The second sentence of article 77 states that the breaching party may claim a reduction in damages for failure to mitigate losses. Decisions divide on which party bears the burden of pleading the failure to mitigate. An arbitral tribunal has stated that the tribunal should review ex officio whether the aggrieved party had complied with the mitigation principle, but that the breaching party had the burden of establishing failure to comply.[70] A court decision, on the other hand, stated that no adjustment to damages will be made if the breaching party fails to indicate what steps the other party should have taken to mitigate.[71] Another decision, however, requires the aggrieved party to indicate the offers for substitute transactions it had solicited before putting the breaching party to the burden of establishing the loss due to failure to mitigate.[72] One arbitral tribunal required the aggrieved party to prove that it took reasonable steps to mitigate the loss.[73]

21. Decisions on who has the ultimate burden of establishing failure to mitigate consistently place the burden on the breaching party to establish such failure as well as the amount of consequent loss.[74]


NOTES

* This presentation of the UNCITRAL Digest is a slightly modified version of the original UNCITRAL text at <http://www.uncitral.org/pdf/english/clout/CISG-digest-2012-e.pdf>. The following modifications were made by the Institute of International Commercial Law of the Pace University School of Law:

   -    To enhance access to contents by computer search engines, we present in html rather than pdf;
 
   -    To facilitate direct focus on aspects of the Digests of most immediate interest, we inserted linked tables of contents at the outset of most presentations;
 
   -    To support UNCITRAL's recommendation to read more on the cases reported in the Digests, we provide mouse-click access to (i) CLOUT abstracts published by UNCITRAL (and to UNILEX case abstracts and other case abstracts); and also (ii) to full-text English translations of cases with links to original texts of cases, where available, in [bracketed citations] that we have added to UNCITRAL's footnotes; and
 
   -    To enable researchers to themselves keep the case citations provided in the Digests constantly current, we have created a series of tandem documents, UNCITRAL Digest Cases + Added Cases. The new cases and other cases that are cited in these updates are coded in accordance with UNCITRAL's Thesaurus.

1. CLOUT case No. 424 [AUSTRIA Oberster Gerichtshof 9 March 2000] (see full text of the decision).

2. [SWITZERLAND Handelsgericht St. Gallen 3 December 2002 (Sizing machine case)].

3. [SWITZERLAND Bundesgericht 17 December 2009].

4. [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 6 June 1991] (cost of freight for return of goods split between buyer who failed to return goods in a reasonable manner and seller who did not cooperate in return).

5. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 10 February 2000 (Arbitral award No. 340/1999)].

6. [NETHERLANDS Hof Arnhem 22 August 1995] (validity of penalty clause determined under national law); [FINLAND Hovioikeus hovrätt Helsinki 31 May 2004 (Crudex Chemicals Oy v. Landmark Chemicals S.A.)].

7. CLOUT case No. 271 [GERMANY Bundesgerichtshof 24 March 1999] (applying German law).

8. CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof 6 February 1996] (see full text of the decision).

9. [GERMANY Landgericht Berlin 15 September 1994].

10. CLOUT case No. 361 [GERMANY Oberlandesgericht Braunschweig 28 October 1999] (requiring seller to resell would make it impossible for seller to perform the original contract during period when breaching party was entitled to demand performance); CLOUT case No. 130 [GERMANY Oberlandesgericht Düsseldorf 14 January 1994]; [CHINA International Economic and Trade Arbitration Commission,People's Republic of China, 18 August 1997 (Vitamin C case)].

11. CLOUT case No. 130 [GERMANY Oberlandesgericht Düsseldorf 14 January 1994] (finding that, in August most retailers in Italian market have filled their stock for the coming season and have no reason to buy more goods for the winter season).

12. CLOUT case No. 277 [GERMANY Oberlandesgericht Hamburg 28 February 1997] (transaction characterized as highly speculative).

13. [GREECE Court of Appeals of Lamia 2006 (docket No. 63/2006) (Sunflower seed case)] (concluding a cover sale for sunflower seed needed in the buyer's oil production business); [BELGIUM Hof van Beroep Gent 10 May 2004 (N.V. Maes Roger v. N.V. Kapa Reynolds)]; CLOUT case No. 681 [CHINA International Economic and Trade Arbitration Commission,People's Republic of China, 18 August 1997 (Vitamin C case)]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 15 November 1996 (Oxytetrecycline case)].

14. CLOUT case No. 85 [UNITED STATES U.S. District Court, Northern District of New York, 9 September 1994], affirmed in part by CLOUT case No. 138 [UNITED STATES U.S. Court of Appeals for the Second Circuit 6 December 1995, 3 March 1995].

15. [CANADA Ontario Court of Appeal 26 January 2000 (Nova Tool & Mold Inc. v. London Industries Inc.)].

16. CLOUT case No. 311 [GERMANY Oberlandesgericht Köln 8 January 1997].

17. [UNITED STATES U.S. Court of Appeals for the Fourth Circuit, 21 June 2002 (Schmitz-Werke v. Rockland)], 2002 US App. LEXIS 12336, 2002 WL 1357095 (buyer continued to attempt to print on the fabric both at the urging of seller and to mitigate damages; article 77 not cited).

18. [NETHERLANDS Rb Arrondissementsrechtbank 's-Hertogenbosch 2 October 1998 (Malaysia Dairy Industries v. Dairex Holland)].

19. [ICC Arbitration Court of the International Chamber of Commerce, October 1996 (Arbitral award No. 8740)] (seller bore risk that buyer's buffers were insufficient in light of the unreliability of suppliers).

20. [ICC Court of Arbitration of the International Chamber of Commerce, January 1997 (Arbitral award No. 8786)]

21. CLOUT case No. 104 [ICC Arbitration Court of the International Chamber of Commerce, 1993 (Arbitral award No. 7197)] (see full text of the decision).

22. [GERMANY Oberlandesgericht Dresden 21 March 2007 (Stolen automobile case)].

23. [GERMANY Oberlandesgericht Koblenz 19 October 2006 (T-Shirts case)].

24. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 16 February 2004 (Arbitral award No. 107/2002)].

25. [SWITZERLAND Handelsgericht St. Gallen 3 December 2002 (Sizing machine case)] (buyer disassembled custom-built sizing machine to sell parts).

26. [UKRAINE Tribunal of International Commercial Arbitration at the Ukraine Chamber of Commerce and Trade 2005 (Arbitral award No. 48)]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 20 January 1998 (Polyester thread case)].

27. CLOUT case No. 474 [RUSSIA Tribunal of International Court of Commercial Arbitration of the Chamber of Commerce and Industry 24 January 2000 (Arbitral award No. 54/1999)].

28. CLOUT case No. 284 [GERMANY Oberlandesgericht Köln 21 August 1997].

29. CLOUT case No. 271 [GERMANY Bundesgerichtshof 24 March 1999].

30. CLOUT case No. 318 [GERMANY Oberlandesgericht Celle 2 September 1998].

31. CLOUT case No. 476 [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 6 June 2000 (Arbitral award No. 406/1998)].

32. CLOUT case No. 303 [ICC Arbitration Court of the International Chamber of Commerce, 1994 (Arbitral award No. 7331)].

33. [FINLAND Helsingin hoviokeus 26 October 2000].

34. CLOUT case No. 1029 [FRANCE Cour d'appel Rennes 27 May 2008 (Brassiere cups case)].

35. [RUSSIA Tribunal of International Commercial Arbitration at the Federation Chamber of Commerce and Industry 27 July 1999 (Arbitral award No. 302/1996)].

36. [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 8 September 1997 (BOPP film case)].

37. CLOUT case No. 235 [GERMANY Bundesgerichtshof 25 June 1997].

38. CLOUT case No. 343 [GERMANY Landgericht Darmstadt 9 May 2000] (see full text of the decision).

39. CLOUT case No. 296 [GERMANY Amtsgericht Berlin-Tiergarten 13 March 1997] (refusing to permit recovery when the aggrieved party employed a debt collection agency in breaching party's jurisdiction rather than bringing suit in aggrieved party's jurisdiction and enforcing this judgment in breaching party's jurisdiction); CLOUT case No. 410 [GERMANY Amtsgericht Alsfeld 12 May 1995] (denying recover when the aggrieved party hired collection lawyer in the aggrieved party's jurisdiction rather than the breaching party's jurisdiction); [GERMANY Landgericht Düsseldorf 25 August 1994] (holding that employment of agent was reasonable only if it was established that the agent had more effective means of recovery than the aggrieved party itself); [GERMANY Landgericht Berlin 6 October 1992] (hiring collection agency deemed contrary to mitigation prin ciple because it was foreseeable that buyer would refuse to pay and the additional expenses of hiring an attorney would have been included in trial costs recoverable from defaulting buyer).

40. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 13 April 2006 (Arbitral award No. 105/2005)].

41. CLOUT case No. 166 [GERMANY Schiedsgericht der Handelskammer Hamburg 21 March 21 June 1996] (no "manifest violation" of mitigation principle) (see full text of the decision).

42. [GERMANY Amtsgericht München 23 June 1995].

43. [NETHERLANDS Rechtbank Arnhem 1 March 2006 (Skoda Kovarny v. B. van Dijk Jr. Staalhandelmaatschappij B.V.)]. See also [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 15 November 1996 (Oxytetrecycline case)].

44. [NETHERLANDS Rechtbank Arnhem 1 March 2006 (Skoda Kovarny v. B. van Dijk Jr. Staalhandelmaatschappij B.V.)].

45. CLOUT case No. 318 [GERMANY Oberlandesgericht Celle 2 September 1998] (see full text of the decision); (buyer destroyed irradiated meat which may have been difficult to resell in the local market, instead of relabeling and trying to resell).

46. CLOUT case No. 301 [ICC Court of Arbitration of the International Chamber of Commerce, 1992 (Arbitral award No. 7585)] (need to mitigate because of size and specifications of machinery) (see full text of the decision).

47. CLOUT case No. 130 [GERMANY Oberlandesgericht Düsseldorf 14 January 1994]; CLOUT case No. 93 [AUSTRIA Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft 15 June 1994] (resale by seller not only justified but may have been obligatory under article 77); CLOUT case No. 227 [GERMANY Oberlandesgericht Hamm 22 September 1992]; [IRAN-US Claims Tribunal, 28 July 1989 (Watkins-Johnson Co. v. Islamic Republic of Iran)] (seller's right to sell undelivered equipment in mitigation of its damages is consistent with recognized international law of commercial contracts).

48. [UNITED STATES U.S. Court of Appeals for the Eleventh Circuit, 12 September 2006 (Treibacher Industrie, A.G. v. Allegheny Technologies, Inc.)]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 6 January 1999 (Australian raw wool case)].

49. [AUSTRIA Oberlandesgericht Graz 24 January 2002 (Excavator case)].

50. CLOUT case No. 133 [GERMANY Oberlandesgericht München 8 February 1995] (aggrieved seller drew on guaranty following breach without taking steps to mitigate).

51. CLOUT case No. 395 [SPAIN Tribunal Supremo 28 January 2000]; [BELGIUM Hof van Beroep Antwerpen 22 January 2007 (B.V.B.A. I.T.M. v. S.A. Montanier)] (cars sold almost immediately to a third party); [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 28 November 1996 (Moly-oxide case)] (seller failed to make cover sales within three months which would have been a reasonable period).

52. [BELGIUM Hof van Beroep Antwerpen 24 April 2006 (GmbH Lothringer Gunther Grosshandelsgesellschaft für Bauelemente und Holzwerkstoffe v. NV Fepco International)].

53. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 10 February 2000 (Arbitral award No. 340/1999)].

54. CLOUT case No. 1082 [UKRAINE Tribunal of International Commercial Arbitration at the Ukraine Chamber of Commerce and Trade 27 October 2004 (Lavatory paper case)]; [UKRAINE Tribunal of International Commercial Arbitration at the Ukraine Chamber of Commerce and Trade 12 January 2004 (Automobile tires case)].

55. CLOUT case No. 977 [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 19 June 2003 (PTA case)].

56. CLOUT case No. 861 [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 29 September 1997 (Aluminium oxide case)].

57. [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 5 February 1996 (Antimony ingot case)].

58. CLOUT case No. 480 [FRANCE Cour d'appel de Colmar 12 June 2001].

59. CLOUT case No. 361 [GERMANY Oberlandesgericht Braunschweig 28 October 1999].

60. [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, post-1989].

61. CLOUT case No. 427 [AUSTRIA Oberster Gerichtshof 28 April 2000] (see full text of the decision).

62. [SWITZERLAND Handelsgericht St. Gallen 3 December 2002 (Sizing machine case)].

63. [BELGIUM Hof van Beroep Antwerpen 24 April 2006 (GmbH Lothringer Gunther Grosshandelsgesellschaft für Bauelemente und Holzwerkstoffe v. NV Fepco International)].

64. [UKRAINE Tribunal of International Commercial Arbitration at the Ukraine Chamber of Commerce and Trade 2005 (Arbitral award No. 48)]. See also [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, June 1999 (Peanut kernel case)] (damages reduced with reference to the current market price where there was a cover sale for a lower price); [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 28 November 1996 (Moly-oxide case)] (damages reduced with reference to market prices within a three month period after the breach of contract).

65. CLOUT case No. 977 [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 19 June 2003 (PTA case)] (buyer refused to have goods remeasured where there was incorrect packaging and where remeasuring would have solved the problem).

66. CLOUT case No. 474 [RUSSIA Tribunal of International Court of Commercial Arbitration of the Chamber of Commerce and Industry 24 January 2000 (Arbitral award No. 54/1999)].

67. CLOUT case No. 265 [HUNGARY Arbitration Court attached to the Hungarian Chamber of Commerce and Industry 25 May 1999].

68. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 13 April 2006 (Arbitral award No. 105/2005)].

69. CLOUT case No. 343 [GERMANY Landgericht Darmstadt 9 May 2000].

70. [ICC Arbitration Court of the International Chamber of Commerce, June 1999 (Arbitral award No. 9187)].

71. [SWITZERLAND Bundesgericht 15 September 2000 (FCF S.A. v. Adriafil Commerciale S.r.l.)]. See also [UNITED STATES U.S. Court of Appeals for the Eleventh Circuit, 12 September 2006 (Treibacher Industrie, A.G. v. Allegheny Technologies, Inc.)]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 17 June 2004 (Arbitral award No. 186/2003) (barter transaction)]; [SWITZERLAND Handelsgericht St. Gallen 3 December 2002 (Sizing machine case)].

72. CLOUT case No. 318 [GERMANY Oberlandesgericht Celle 2 September 1998] (although burden of establishing failure to mitigate is on breaching party, that was irrelevant in case because buyer was obliged to indicate which offers for a substitute transaction she obtained and from which companies) (see full text of the decision).

73. CLOUT case No. 318 [GERMANY Oberlandesgericht Celle 2 September 1998] (see full text of the decision); [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 13 April 2006 (Arbitral award No. 105/2005)]; [FINLAND Hoviokeus/hovrätt Turku 24 May 2005].

74. CLOUT case No. 318 [GERMANY Oberlandesgericht Celle 2 September 1998] (see full text of the decision); CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof 6 February 1996] (breaching party had to establish how other party had violated the mitigation principle, the possible alternative courses of action, and the loss that would have been prevented; issue was raised on appeal without specific reference to facts that might be relevant) (see full text of the decision); [UNITED STATES U.S. Court of Appeals for the Eleventh Circuit, 12 September 2006 (Treibacher Industrie, A.G. v. Allegheny Technologies, Inc.)]; [SWITZERLAND Handelsgericht St. Gallen 3 December 2002 (Sizing machine case)]; [ICC Arbitration Court of the International Chamber of Commerce, September 1996 (Arbitral award No. 8574) (Metal concentrate case)].


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