[United Kingdom (A/CONF.97/C.1/L.113):
It is proposed that the word "would" be substituted for the word "could" in this article.]
[United States of America (A/CONF.97/C.1/L.117):
Add a new paragraph (2):
"If in accordance with the provision of this Convention, one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgement for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention."]
41. Mr. FELTHAM (United Kingdom), introducing his delegation's amendment (A/CONF.97/C.1/L.113), said that it was identical with the United States amendment (A/CONF.97/C.1/L.117). The United States delegation would reserve its remarks in case any further explanation was needed later in the discussion.
42. He reminded the Committee of the terms of article VII(1) of the 1964 Hague Convention, recapitulated in article 16 of the Uniform Law on the International Sale of Goods: "1. Where under the provisions of the Uniform Law one party to a contract of sale is entitled to require performance of any obligation by the other party, a court shall not be bound to enter or enforce a judgement providing for specific performance except in the cases in which it would do so under its law in respect of similar contracts of sale not governed by the Uniform Law."
43. That formulation had been an attempt to ease the position of those States whose courts regarded specific performance as an exceptional rather than a usual remedy. In the formulation in article 26 of the draft Convention [became CISG article 28 ], however, the important word "would" had been changed to "could". The effect was to reduce vastly the protection afforded by the earlier provision to those States whose courts did not readily grant the remedy of specific performance. Under article 26 [became CISG article 28 ], if a national court had jurisdiction to grant specific performance -- in other words, if it "could" do so -- it would be obliged to give such a judgement if that was, under the Convention, an appropriate remedy in the circumstances.
44. Courts in England in fact had jurisdiction entitling them to order specific performance, but it was very rarely exercised. The general principle was that it was not exercised where damages were an appropriate remedy. However, because the courts had jurisdiction to grant it, they no longer enjoyed the protection extended by article VII of the Hague Convention. Since it was not possible to say that they never granted specific performance, they might arguably be compelled to do so under the Convention. The problem was perhaps particular to common law jurisdictions, and he would be interested to hear the views of countries with different legal systems.
45 Mr. DATE-BAH (Ghana) said that his delegation associated itself with the position stated by the United Kingdom.
46. Mr. KRISPIS (Greece) found the argument for the amendment convincing and said that a similar situation could arise in civil law countries as well. It was his delegation's understanding that "law", in the phrase "under its own law" in article 26 [became CISG article 28 ], included the rules of private international law applicable to the particular forum.
47. Mr. KIM (Republic of Korea) asked whether article 26 [became CISG article 28 ] covered arbitration proceedings as well as ordinary judicial proceedings. In England, for instance, the two were closely related. As most international commercial disputes were settled by arbitration, it was important to make it clear that article 26 [became CISG article 28 ] would also be applicable to such proceedings.
48. The CHAIRMAN pointed out that in many States the relevant legislation also related to arbitration proceedings. That should be taken into account in deciding whether article 26 [became CISG article 28 ] could or should apply to arbitral tribunals as well.
49. Mr. WAGNER (German Democratic Republic) said that his delegation preferred the present text of the Convention, which it interpreted as a compromise to prevent common law courts from being compelled to do something which they could not normally do under their law.
50. Mr. POPESCU (Romania) said he was doubtful about the scope of the present text, since it was possible for international disputes to be judged in the first instance in one country, but for judgement to be enforced by a second judge in another country. In such cases, would article 26 [became CISG article 28 ] apply to both the original court action and the execution of judgement, and what would happen if the law of the exequatur country did not provide for specific performance? Article 26 [became CISG article 28 ] should apply to arbitration proceedings as well, if numerous cases were not to fall outside the scope of the Convention.
51. Mr. DATE-BAH (Ghana) agreed with the representative of the German Democratic Republic that the purpose of the compromise was to prevent common law courts from being compelled to order specific performance when they would not ordinarily do so. The amendment, however, would not affect the compromise, but would merely make the article conform more closely to the expectations that would arise under the compromise.
52. The United Kingdom and United States amendments (A/CONF.97/C.1/L.113, L.117) were adopted by 26 votes to 10.
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