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THE LEGAL CONSEQUENCES OF EXEMPTION UNDER CISG 1980 – IN COMPARISON WITH VIETNAMESE LAWS (luận văn thạc sỹ luật học)

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  • THE LEGAL CONSEQUENCES OF EXEMPTION UNDER CISG 1980 – IN COMPARISON WITH VIETNAMESE LAWS (luận văn thạc sỹ luật học)

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M ANAGING BOARD OF S PECIAL P ROGRAMS BACHELOR THESIS MAJOR IN INTERNATIONAL LAW T HE L EGAL C ONSEQUENCES OF E XEMPTION U NDER CISG 1980 – I N C OMPARISON W ITH V IETNAMESE L AWS Student name : ĐẶNG VIỆT HƯNG Student code : 1055050112 Class : CLC K35 Supervisor : Ph.D ĐỖ THỊ MAI HẠNH Ho Chi Minh City 2014 A CKNOWLEDGEMENTS I would like to express my sincere appreciation and thanks to my supervisor Ph.D Đỗ Thị Mai Hạnh for the continuous support of my thesis study and research, for your motivation, enthusiasm, along with immense skills and knowledge Your guidance helped me in all the time of research and writing of this thesis My sincere thanks also go to Center for Information and Library, Ho Chi Minh City University of Law and Institute of International Commercial Law, Pace University website, from where I have obtained most of the materials and documents for the study, as well as offering me the facilities so that I could complete my thesis A special thanks to Uông Thị Mỹ Châu (Cindy) for your support by proofreading the drafts of this thesis and giving me a lot recommendations for improvement Last but not least, I would like to thank my family: my parents and sister, and all of my friends, for supported me spiritually and encouraged me to strive towards my goal COMMITMENT I, Đặng Việt Hưng, hereby declare that this thesis “The Legal Consequences of Exemption under CISG 1980 – in Comparison with Vietnamese Laws” is wholly my own work, unless otherwise referenced or acknowledged, under the supervision of Ph.D Đỗ Thị Mai Hạnh I shall be at full responsibility for my commitment Đặng Việt Hưng 21 July 2014 T ABLE OF C ONTENTS I NTRODUCTION Rationale of The Research Literature Review Objectives of This Thesis .5 Scope of This Thesis .5 Research Methodologies Outline of This Thesis CHAPTER OVERVIEW ON THE INSTITUTION OF EXEMPTION 1.1 The United Nations Convention on Contracts for the International Sales of Goods and Vietnamese Commercial Law of Viet Nam .7 1.1.1 Scope of application 1.1.2 Reasons to study about CISG 1.2 Overview on the Breach of Contract 1.3 Liability and Remedies for breach of contract 11 1.3.1 Specific performance .12 1.3.2 Damages 14 1.3.3 Penalty 18 1.3.4 Suspension of performance 19 1.3.5 Avoidance, cancellation and stoppage of performance of contract 21 1.4 Significance of Exemption from Liability for Breaches of Contract 25 CHAPTER CONDITIONS FOR EXEMPTION AND LEGAL CONSEQUENCES OF EXEMPTION UNDER CISG AND VIETNAMESE LAWS 27 2.1 Scope of Exemption 27 2.2 The Occurrence of Impediment or Event of Force Majeure 29 2.2.1 Conditions for Exemption .29 2.2.2 Burden of Proof .42 2.2.3 Legal Consequences 43 2.2.4 Duration of exemption and continuation of the remaining obligation 50 2.3 The Failure to Perform Is Caused by The Fault or The Act or The Omission of The Aggrieved Party .53 2.3.1 Conditions for Exemption .54 2.3.2 Legal Consequences 57 2.4 Agreement on Exemption 59 2.4.1 Conditions for Exemption .60 2.4.2 Legal Consequences 63 2.5 Suggestions for Improvement of Vietnamese Laws on Exemption .63 2.5.1 Characteristics of Force Majeure, Examination of the Elements of Unforeseeability and Inability to Avoid or Overcome Need to Be Supplemented 63 2.5.2 The System of Remedies Available in Case of Exemption Needs to Be Reformed .65 CONCLUSION 67 BIBLIOGRAPHY 68 I NTRODUCTION RATIONALE OF THE RESEARCH Commercial transactions play a very important part in the modern society, especially the international transactions in a world where globalization is flourishing Commercial contracts are not only the form but also the tools for these transactions One of the most important principles of the laws on contract is pacta sunt servanda, stressing that contained clauses are law between the parties, and implying that non-fulfillment of respective obligations is a breach of the pact The general principle of correct behavior in commercial praxis — and implies the bona fide — is a requirement for the efficacy of the whole system, so the eventual disorder is sometimes punished by the law of some systems even without any direct penalty incurred by any of the parties.1 The risks of changes in circumstances, to the extent that one party cannot perform its contractual obligation, in commercial transaction are unavoidable, particularly in international transactions That is because there are many external or even internal elements that could hamper the performance of obligation and out of the control of the parties Upon the occurrence of such impediment, one party may become unable or extremely difficult to properly perform the contractual obligations It would be unfair and discouraging to such party if it is held liable for damages in the usual manner Therefore, the party failed to perform its obligation due to an impediment should be discharged from liabilities for such nonperformance to maintain the balance between the parties CISG regulation on exemption is the solution for this problem CISG, one of the most renowned and widely applied legal instruments in an international scale governing contract for the sales of goods, has introduced the regulation on exemption in Section IV of Chapter – Provisions Common to The Obligations of the Seller And of the Buyer, which consists of Articles 79 and 80 Article 79 deals with one of the most delicate questions in contract law, the effects of the impossibility to perform one of the obligations of the contract To what extent may the non-performing party be exempted, i.e., may he avoid the remedies Princeton University, Definition of Pacta sunt servanda, https://www.princeton.edu/~achaney/tmve/ wiki100k/docs/Pacta_sunt_servanda.html, last visited on 16 May 2014 available to the other party?2 Article 80 nonetheless deals with the second case of exemption, which is due to the promisee’s act or omission.3 The Vietnamese laws on contracts have just emerged for almost 30 years, after the Sixth Congress of the Communist Party of Viet Nam in 1986 and the introduction of Doi Moi policies Specifically, the National Assembly has passed Civil Code 1995 and then Civil Code 2005 No 33/2005/QH11, which set out the general principle for civil transactions and contracts; Ordinance on Economic Contract 1989, then Vietnamese Commercial Law 1997 No 58/L-CTN and eventually the prevailing Vietnamese Commercial Law 2005 No 36/2005/QH11 as well as other relevant laws, decrees, circulars and regulations In the course of development, Viet Nam has referenced a lot of institutions and regulations from other countries’ laws as well as from international conventions This research is meant to give a comprehensive view, through the detailed analysis of the texts and examples, of the institution of exemption from contractual liability and particularly its legal consequences under CISG 1980 and in comparison with Vietnamese laws With the desire to contribute to the improvement of the laws, the author would like to propose certain suggestions LITERATURE REVIEW There have been a number of academic writings regarding this subject from foreign and Vietnamese professionals On the view that this thesis is a research in the field of comparative law, the author acknowledges the necessity to look in both the works and writings on exemption under CISG and under Vietnamese laws A survey of papers on this subject published on Vietnamese and foreign legal journals have been carried out by the author of this thesis The ones that are accessible by the author can be allocated into three groups The first group is the writings, papers and research, by foreign authors, which deliver analysis and comments on the regulations of CISG This group insists of: Dennis Tallon, Article 79 and 80, in “Bianca-Bonell Commentary on the International Sales Law”, Giuffrè: Milan (1987) 572-600; Joseph Lookofsky, Article 79 Liability Exemptions for Failure to Perform, excerpt Tallon, “Bianca-Bonell Commentary on the International Sales Law” (1987), 574 Tallon, above n 2, 596 from International Encyclopaedia of Laws - Contracts, Suppl 29 (December 2000) 1-192; John O Honnold, Article 79 Impediments Excusing Party From Damages (“Force Majeure”) and Article 80 Failure of Performance Caused by Other Party, excerpt from Uniform Law for International Sales under the 1980 United Nations Convention, 3rd ed (1999), 472-500; Chengwei Liu (2005), Force Majeure Perspectives from CISG, UNIDROIT Principles, PECL and Case Law; Barry Nicholas, Impracticability and Impossibility in the U.N Convention on Contracts for the International Sale of Goods, in International Sales: The United Nations Convention on Contracts for the International Sale of Goods, Matthew Bender (1984), Ch 5, pages 5-1 to 5-24; Peter Schlechtriem, Items H Exemptions (Article 79) and I Failure of Performance Caused by the Other Party (Article 80), excerpt from Uniform Sales Law – The UN-Convention on Contracts for the International Sale of Goods, Manz, Vienna (1986), 100-105 These are very detailed and enormous works in analyzing and evaluating the rule on exemption of CISG Some of them even provide the origin of the solutions in the convention by the way of comparing them to principles of national laws Above all, the Secretariat Commentary on the 1978 Draft is rather the most authoritative source Other writings represent the different ideas of the authors on a certain number of elements of this institution, such as the scope of application, the qualification of characteristics of impediment and the consequences of exemption Furthermore, these papers also put the rule in the context by giving a lot of examples and practical cases Despite being unanimous in many aspects of the rule, the authors of the aforesaid writings have different opinions on certain confusing points within the text of CISG For instance, whether the breach of seller’s obligation to deliver conforming goods constitutes exemption effect; whether the changes in circumstances that create excessive financial or economic difficulties satisfy the ‘out-of-control’ element set out in CISG Article 79 and whether a general supplier of goods, particularly fungible goods, falls inside the notion of ‘third person’ under Article 79 (2) of CISG are several issues on which the scholars have different opinions The second group comprises of writings, papers and research on Vietnamese laws which govern the same subject In Ho Chi Minh City University of Law, there are some theses in bachelor degree which focus or relate to Vietnamese regulations on exemption, such as: Nguyen Thi Le (2012), “The relations between commercial remedies in Vietnamese Commercial Law 2005” and Nguyen Thi Thanh Nu (2013), “Damages remedy in Vietnamese Commercial Law 2005.” These theses’ focus is the commercial remedies provided by Vietnamese Commercial Law 2005 of Viet Nam Hence, the regulations and analysis of exemption are only briefly presented, that is, they only furnish short explanations of the four grounds for exemption under Article 294 of Vietnamese Commercial Law Nguyen Do Son Tra (2012), Legal aspects of exemption and limitation of liability for traders trading in Logistics This research focuses on the exemption in the logistics activities The conditions for exemption, therefore, are represented in two groups, depending to the scope of exemption The first group is exemptions of liability for the act of breaching However, the examples given are specifically related to the logistics activities and extracted from Maritime Code 2005, Postal Law 2010, Civil Aviation Law 2006, Railway Law 2005, etc The second group is exemptions of liability for the loss of goods, in which the author of this thesis provided analysis of the statutory conditions for exemption stipulated in Vietnamese Commercial Law Nguyen Thi Ngan (2013), Exemption in commercial activities This is one of the most comprehensive works on the institution of exemption under Viet Nam’s Vietnamese Commercial Law 2005 Ngan presents about the basic exemption conditions stated in Article 294 and those for logistics and assessment services in Articles 237 and 266 of Vietnamese Commercial Law respectively Moreover, the author also takes examples from the clauses of contracts and judgments of the courts or arbitral tribunals in order to draw attention to the defects of the prevailing laws as well as the inconsistency in the interpretation and application of the laws; and finally to make suggestions for the improvement of the same The third group contains the research on the aforementioned matter with a comparative manner Nguyen Thi Kim Phung (2010), Liability for breach of contract under CISG 1980 in comparison with Viet Nam’s Commercial law 2005 Though exemption is an integral part of the institution of liability for breach of contract, the analysis on exemption in this research is not extensive and primarily focuses on the regulations of Vietnamese Commercial Law The author of this thesis concluded that CISG is more relevant and reasonable than Vietnamese Commercial Law 2005 for the following reasons: (i) CISG provides restriction of liability exemption clause, as in case the seller already knew or would have known about the inconformity of the goods at the time the contract is concluded, the exemption agreement is void; (ii) CISG clearly stipulates the exemption for the liability incurred by the failure to perform of a third party and (iii) CISG is also a better legislation because instead of listing or defining the conditions for exemption, it provides the criteria of the same OBJECTIVES OF THIS THESIS By deeply analyzing the regulations of CISG on exemption, with comparison with Vietnamese laws, the author intends to give a comprehensive understanding on the legal institution of exemption of liability and its legal consequences as well as to point out the similarities and differences between the two jurisdictions On the other hand, the research is meant to help Vietnamese traders who engaged in international transactions for the sale of goods, where the applicable law is CISG, to get better preparation to protect themselves from damages in certain circumstances Last but not least, the research is also conducted for the purpose of using the merits of CISG 1980 as an experience for improving Vietnamese laws in terms of exemption by the way of providing recommendation to improve the prevailing laws of Viet Nam SCOPE OF THIS THESIS Due to restrictions on the availability of the materials and the time frame for the research, it is the author’s intention that the thesis is limited in scope as defined below: Firstly, CISG is the convention on contracts for the sale of goods; hence, the Vietnamese laws to be in comparison with CISG must also be the law that governs commercial activities in general and sales of goods in particular By this approach, the author finds it appropriate to consider the Vietnamese Commercial Law 2005 (Law No 36/2005/QH11, passed by Legislature XI of the National Assembly of the Socialist Republic of Vietnam at its 7th Session on 14 June 2005) as the corresponding law to CISG for the purpose of analyzing and comparing The author also sees the need to cite provisions of Civil Code in this thesis because a number of definitions and basic principles can only be found in such legislation, since Another embodiment of a direct exclusion clause is a limitation clause, which limits the maximum liability of one party to a certain amount of money or a degree whatsoever A typical limitation clause can be found in the transportation contract between the Viet Nam Railways Corporation and the passenger, which states “the passenger is insured by Bao Viet Insurance at the maximum rate of 30 million Vietnamese Dongs Upon the occurrence of an accident, Bao Viet will directly pay the said amount of insurance to the passenger This compensation is the most the passenger may recover for his or her loss, whether contractual damages or torts Moreover, the passenger shall be totally responsible for the luggage he or she brought on the train.”196 On the other hand, indirect exclusion clause are either indemnity clause or waiver (of the aggrieved party’s right to sue) clause In the lease contract between the landlord and the tenant of a building named M in Ho Chi Minh City, for example, the parties agree that “the Tenant shall indemnify to the Landlord all the expenses incurred due to a claim from a third party against the Landlord for the loss occurred in the premise that the Tenant manage.”197 This means if a visitor to the building suffers any loss (e.g to his or her properties), the tenant will not be held liable instead of the landlord It is obvious that the scope of exemption must also be contained in the exemption agreement However, if the agreement does not indicate the range of obligations which is eligible for exemption, it is deem that the breach of any obligation is available for consideration of exemption The Vietnamese laws only require the exemption agreement to be ‘not inconsistent with law, fine customs and social ethics.’ These qualities are vague and whether an agreement on exemption violates those conditions or not can only be figured out on a case-by-case basis CISG although does not obviously put any limitation on the exemption agreement, the specific restriction in cases where the buyer fails to justify his obligation to deliver conforming goods (CISG Article 40) and obligation to deliver goods which not subject to any claim or right of a third party (CISG Article 43 (2)) 196 197 Le Net, above n 194, 14 Le Net, above n 194, 14-15 61 Generally, it is the seller’s duty to “examine the goods, or cause them to be examined.”198 However, “the buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it” or “if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer.”199 CISG Article 40, on the other hand, indicates that “if the lack of conformity relates to facts of which the seller knew or could not have been unaware and which he did not disclose to the buyer” the seller “is not entitled to rely on the provisions of articles 38 and 39.” This rule means even if the parties have an agreement to exempt the seller from any liability for non-conforming goods, the outcome of the previously mentioned case does not alter Take another example of CISG’s restriction on the circumstances which release the seller from liability in case the goods subjects to any claim or right of a third party The general rule is that the buyer “loses the right to rely on the provisions of article 41 or article 42” if does not give notice to the seller specifying the nature of the right or claim of the third party within a reasonable time after he has become aware or ought to have become aware of the right or claim The seller, however, cannot escape from his liability if he knew of the right or claim of the third party and the nature of it Similar to the example of CISG Article 40, the agreement on exemption of the parties in this case does not release the seller from his liability Therefore, CISG Article 40 and Article 43 (2), to a certain degree, form a restriction on liability exemption clause for the seller who delivered nonconforming goods or goods which subjects to dispute.200 Or in other words, the parties may agree whatsoever; the rules of CISG Article 40 and Article 43 (2) still prevail Last but not least, exemption upon the occurrence of a force majeure event is a statutory basis for exemption.201 As a result, if the parties have included a “force majeure” clause in the contract which define force majeure by listing out the specific circumstances or events, and the non-performance is in fact caused by an 198 CISG Article 38 (1) CISG Article 39 200 See Nguyen Thi Kim Phung, above n 13 201 Nguyen Thi Ngan (2013), above n 53, 31 199 62 event which qualified the requirements of force majeure provided by the laws but not on the list, such event can still produce exemption effect by the operation of the law In other words, the agreement of the parties to eliminate or restrain the statutory grounds for exemption shall be voided In brief, in order to invoke exemption from liability for a certain breach, there must be an agreement on exemption of liability between the parties and the aforesaid breach must be exemptible under the agreement 2.4.2 Legal Consequences As previously mentioned in the scope of exemption, the basic principle is that the legal consequences of the exemption by agreement are also a matter that should be covered by the agreement However, if the agreement does not indicate how exactly the exemption agreement affects on the non-performing party liability, it is deem that any liability subjects to exemption The legal consequences of exemption under an exclusion clause may varies from exempting the default party from all and any liability or setting a maximum liability that the non-performing party is willing to pay Indemnity clauses nonetheless cover all of one party’s losses incurred in the implementation of the contract Waiver clauses remove the aggrieved party from his right to sue the other party for any remedy 2.5 SUGGESTIONS EXEMPTION FOR IMPROVEMENT OF VIETNAMESE LAWS ON As abovementioned, one of the objectives of this research is to utilize the merits of CISG 1980 as an experience for improving Vietnamese laws in terms of exemption from contractual liability by the way of providing recommendations to improve and to help eradicate the irrational points the prevailing laws of Viet Nam The author has come to the following suggestions 2.5.1 Characteristics of Force Majeure, Examination of the Elements of Unforeseeability and Inability to Avoid or Overcome Need to Be Supplemented The term of ‘force majeure’ appears broadly in the laws and legal science of Viet Nam as one of the most popular excuse for a non-performance of obligation Article 161 (1) of Civil Code 2005 (or the corresponding Article 170 of Civil Code 63 1995), “a force majeure means an event which occurs objectively and unpredictably and cannot be overcome though all necessary measures have been applied and all the permitted capabilities have been used.” Upon the occurrence of an event of force majeure, the default party cannot be held liable for the respective liability In Vietnamese Commercial Law, the occurrence of the event of force majeure is also a statutory basis for exemption.202 However, the Vietnamese Commercial Law neither gives the definition of force majeure nor refers to any other provision or legislations The only definition available of force majeure is stipulated indirectly in Article 161 of Civil Code 2005, a provision on the extension of time limit Therefore, the interpretation of force majeure, by using this article is not straightforward and, to some extent, awkward Since defining force majeure is of far less practical meaning than specifying which certain events and circumstances are eligible for one party to excuse its nonperformance, the author suggest that the Vietnamese Commercial Law should be amended, with an objective manner, to create a system of its own, in which, the law furnishes the characteristics of an exemptible force majeure rather than trying to define the force majeure Under this approach, the term “force majeure” should be used and interpreted in exactly the same way as the term “impediment” under CISG, without any reference to the term “force majeure” under Civil Code, in order to make room for debates of the parties and application of the courts / arbitral tribunal Moreover, to maintain the unification in the interpretation of this provision, the Council of the Judges of the People’s Supreme Court may gather and summarize the judgments in practical cases to give the detailed guidelines, in a form of a Resolution, for a number of certain cases Nonetheless, the current regulation of Vietnamese Commercial Law (and Civil Code also) does not indicate whether the elements of unforeseeability and incapability to avoid or overcome should be examined only by the certain evidences or also by the reasonable person test The author opinion is that the elements of unforeseeability and incapability to avoid or overcome should be considered using a reasonable person test, based on the specific situations And these elements should be considered at the time the contract was entered into as well, because the basic principle of commercial laws is that each party conduct businesses at its own risks; hence if a party is able to foresee or in the condition to foresee that his performance 202 Article 294 (1) (b) of Vietnamese Commercial Law 2005 64 would be obstructed by a force majeure at the time of conclusion of the contract but still entered into it, it would be meaningless and unfair to grant exemption to such party for a foreseeable non-performance Therefore, the amended provision on exemption under Vietnamese Commercial Law should be as follow: “The default party shall be exempted from his liability for a non-performance if he can prove that the non-performance was due to a force majeure which occurred objectively and such party could not reasonably expected to foresee or overcome or avoid such force majeure at the time the contract was entered into.” 2.5.2 The System of Remedies Available in Case of Exemption Needs to Be Reformed As already discussed in the previous parts (Section 2.2.3.2 Specific Performance (pages 46-49) and Section 2.2.4 Duration of Exemption (pages 5053)), under Vietnamese laws, the default party is discharged from any liability other than specific performance This approach is only a bit rational in case the contract has already been rendered impossible; the case in which compelling performance does not has significant meanings In general, it is an absurd approach that all the remedies which are other than specific performance are unavailable and the aggrieved party is only left with specific performance It is obviously the intention of the lawmakers that specific performance should be applied firsthand in case of a non-performance by force majeure Article 296 (1) of Vietnamese Commercial Law, once again, clearly facilitate the compellation of specific performance by requiring the parties to settle an extension for the contract performance duration, otherwise, the duration for performance will be extended by the operation of the law for an additional period of time equal to the length of such event of force majeure plus a reasonable amount of time for remedying the consequences The author supposes that this rule is rigid and irrelevant Because, for instance, if a party to a contract is completely prevented from performing his obligation due to an event of force majeure, the other party can neither cancel the contract or stoppage of his performance even if the non-performance amounts to a fundamental breach Such injured party does not have any other choice but to wait for the force 65 majeure event to conclude or wait until the 5-or-8-month extension is over before he can impose any other remedies Therefore, it is suggested that the system of remedies available in case of force majeure under Vietnamese Commercial Law should be amended to add more flexibility and the right to choose of the parties should also be respected Specifically, upon the occurrence of an event of force majeure, the default party is only excused from damages The availability of other remedies should be decided upon the specific situations rather than pre-specified by the laws In addition, if the parties cannot or not want to agree to extend the time limit for the performance of the obligation being prevented by a force majeure event, the law should respect their choices rather than imposing an extension regardless of the will of the parties 66 C ONCLUSION In this thesis, the legal consequences of exemption, under CISG and Vietnamese laws, are considered in three groups of reason, namely the occurrence of impediment, the act or omission of the obligee which caused the breach and the agreement on exemption The author compares and analyzes the provisions of CISG and Vietnamese Commercial Law to finds many differences in the approach as well as in specific regulations of these legal documents The most significant differences are, Where the exemption is invoked upon the occurrence of an impediment or force majeure, CISG does not prevent the aggrieved party from impose any remedies which are other than damages such as compelling specific performance or declaring the contract avoided Conversely, under Vietnamese Commercial Law, the only remedy available for the aggrieved party is specific performance In the case the failure to perform is cause by the act or omission of the aggrieved party, CISG releases the non-performing party from any liability that may arise, while Vietnamese Commercial Law discharges such party from any liability that is other than specific performance In the light of the above, the author, with the desire to contribute to the improvement of the Vietnamese laws, comes to the following suggestions The provision on exemption under Vietnamese Commercial Law should be amended as follow: “The default party shall be exempted from his liability for a non-performance if he can prove that the non-performance was due to a force majeure which occurred objectively and such party could not reasonably expected to foresee or overcome or avoid such force majeure at the time the contract was entered into.” The author also suggests that the system of remedies available in case of force majeure under Vietnamese Commercial Law should be amended to release the defaulting party from damages only The availability of other remedies (specific performance and cancellation of contract) should be decided upon the specific situations rather than pre-specified by the laws Finally, the author hopes that the findings and suggestions that this thesis delivers would contribute not only to the jurisprudence but also to the implementation of the prevailing laws of Viet Nam 67 BIBLIOGRAPHY DOCUMENTS IN VIETNAMESE Legal Instruments Civil Code No 33/2005/QH11 dated 14 June 2005 of the National Assembly of the Socialist Republic of Viet Nam Law on Commerce No 36/2005/QH11 dated 14 June 2005 of the National Assembly of the Socialist Republic of Viet Nam Maritime Code No 40/2005/QH11 dated 14 June 2005 of the National Assembly of the Socialist Republic of Viet Nam Books Nguyen Thi Khe and Bui Thi Khuyen, “Law on Commerce and Commercial Dispute Resolution” (2006) [Nguyễn Thị Khế – Bùi Thị Khuyên, Luật Thương mại Giải tranh chấp thương mại, NXB Tài (2006)] Nguyen Van Luyen, Le Thi Bich Tho and Duong Anh Son, “Textbook on International Commercial Contract Law” (2007) [PSG TS Nguyễn Văn Luyện – TS Lê Thị Bích Thọ – TS Dương Anh Sơn, Giáo trình Luật Hợp đồng Thương mại Quốc tế, NXB Đại học quốc gia TP.HCM (2007)] Van Dai Nam and Nam Cat, “International Commercial Contract Law” (1999) [Vân Đại Nam – Nam Cát, Luật Hợp đồng thương mại quốc tế, NXB Chính trị quốc gia (1999)] Nguyen Xuan Quang, Le Net, Nguyen Ho Bich Hang, “Vietnamese Civil Law” (2007) [Nguyễn Xuân Quang, Lê Nết, Nguyễn Hồ Bích Hằng, Luật Dân Việt Nam, NXB Đại học Quốc gia TP.HCM (2007)] Ho Chi Minh City University of Law, “Textbook on the Laws of Commerce in Goods and Services” (2013) [Đại học Luật TP Hồ Chí Minh, Giáo trình Pháp luật Thương mại Hàng hóa Dịch vụ, NXB Hồng Đức – Hội luật gia Việt Nam (2013)] Ho Chi Minh City University of Law, “Textbook on Contract Law and Tort Law” (2010) [Đại học Luật TP Hồ Chí Minh, Tập giảng Pháp luật Hợp đồng Bồi thường thiệt hại Ngoài hợp đồng (2010)] Legal Journal 10 Pham Kim Anh, “Definition of fault in Civil Liability” (2003), Jurisprudence Journal 36 [ThS Phạm Kim Anh, Khái niệm lỗi trách nhiệm dân sự, Tạp chí Khoa học pháp lý số 3/2003] 11 Do Van Dai, “Cancellation and Suspension of Contract upon Breach of Contract under Civil Code of Viet Nam” (2004), Jurisprudence Journal 22 [Đỗ Văn Đại, Vấn đề hủy bỏ, đình hợp đồng bị vi phạm Bộ luật dân Việt Nam, Tạp chí khoa học pháp lý số 3(22)/2004] 12 Le Net, “Suggestions for the draft of Civil Code (amended) on exemption of liability and limitation of interest clauses in contracts” (2005), Jurisprudence Journal 14 [Lê Nết, “Góp ý dự thảo BLDS (sửa đổi) điều khoản miễn trừ trách nhiệm hạn chế quyền lợi hợp đồng”, Tạp chí khoa học pháp lý số 2/2005] 13 Nguyen Thi Hang Nga, “Application of penalty and damages remedies in the reality of contractual dispute settlement in commercial activities” (2006), People’s Court Journal 25 [Nguyễn Thị Hằng Nga, “Áp dụng chế tài phạt hợp đồng bồi thường thiệt hại vào thực tiễn giải tranh chấp hợp đồng hoạt động thương mại”, Tạp chí Tịa án nhân dân số 9/2006] Theses 14 Nguyen Thi Ngan, “Exemption in Commercial Activities” (Bachelor Thesis, Ho Chi Minh City University of Law, 2013) [Nguyễn Thị Ngân, Miễn trách hoạt động thương mại (Khóa luận tốt nghiệp cử nhân, Đại học Luật TP Hồ Chí Minh, 2013)] 15 Nguyen Thi Kim Phung, “Liability for breach of contract under CISG 1980 in comparison with Viet Nam’s Commercial law 2005” (Bachelor Thesis, Ho Chi Minh City University of Law, 2010) [Nguyễn Thị Kim Phụng, “Trách nhiệm vi phạm hợp đồng theo Công ước Viên 1980 tương quan so sánh với Luật Thương mại Việt Nam 2005” (Khóa luận tốt nghiệp cử nhân, Đại học Luật TP Hồ Chí Minh, 2010)] Miscellaneous 16 Dictionary of Vietnamese language, Da Nang Publishing House (2006) [Từ điển tiếng Việt, Hoàng Phê chủ biên, Nhà xuất Bản Đà Nẵng (2006)] 17 Do Van Dai, “Final Report of the Subject: The Failure to Comply with Contract under Vietnamese legislations” (Ministerial Science and Technology Project, 2010) [Đỗ Văn Đại, “Báo cáo tổng kết đề tài: Vấn đề không thực hợp đồng theo pháp thực định Việt Nam” (Đề tài khoa học cấp Bộ, 2010)] DOCMENTS IN FOREIGN LANGUAGE Secretariat Commentaries 18 CISG – Advisory Council Opinion No 7, Exemption of Liability for Damages under Article 79 of CISG 19 Secretariat Commentary on article 24 of the 1978 Draft [draft counterpart of CISG article 26] [Buyer’s right to avoid contract] 20 Secretariat Commentary on article 41 of the 1978 Draft [draft counterpart of CISG article 45] [Buyer’s remedies in general; claim for damages; no period of grace] 21 Secretariat Commentary on article 42 of the 1978 Draft [draft counterpart of CISG article 46] [Buyer’s right to require performance] 22 Secretariat Commentary on article 45 of the 1978 Draft [draft counterpart of CISG article 49] [Buyer’s right to avoid contract] 23 Secretariat Commentary on article 58 of the 1978 Draft [draft counterpart of CISG article 62] [Seller’s right to require performance] 24 Secretariat Commentary on article 62 of the 1978 Draft [draft counterpart of CISG article 71] [Suspension of performance] 25 Secretariat Commentary on article 65 of the 1978 Draft [draft counterpart of CISG article 79] [Impediments beyond a party’s control] 26 Secretariat Commentary on article 66 of the 1978 Draft [draft counterpart of CISG article 81] [Effect of avoidance; release from obligations; contract provisions for settlement of disputes; restitution] 27 Secretariat Commentary on article 70 of the 1978 Draft [draft counterpart of CISG article 74] [General rule for measurement of damages] 28 Secretariat Commentary on article 73 of the 1978 Draft [draft counterpart of CISG article 77] [Mitigation of damages] Books 29 Fritz Enderlein & Dietrich Maskow, “International Sales Law: United Nations Convention on Contracts for the International Sale of Goods” (1992), Available at: 30 John Felemegas, “Introduction in an International Approach to the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law” (2007) 31 Dionysios P Flambouras, “Comparative Remarks on CISG Article 79 & PECL Articles 6:111, 8:108” (2002) 32 John Yukio Gotanda, “Supplemental damages in private international law: the awarding of interest, attorneys’ fees and costs, punitive damages and damages in foreign currency examined in the comparative and international context” (1998); available at: ; TLDB Document ID: 123420 33 John Honnold, “Documentary History of the Uniform Law for International Sales” (1989) 34 John O Honnold, “Uniform Law for International Sales under the 1980 United Nations Convention”, Kluwer Law International, 3rd ed., The Hague (1999) 35 A.H Hudson, “Exemptions and Impossibility under the Vienna Convention”, excerpt from “Force Majeure and Frustration of Contract”, McKendrick ed., Lloyds of London Press (1991) 36 Joseph Lookofsky, “The 1980 United Nations Convention on Contracts for the International Sale of Goods” in “International Encyclopaedia of Laws Contracts”, Suppl 29 (2000) 37 Nagla Nassar, Sanctity of Contracts Revisited, Dordrecht, Boston, London (1995); available at: ; TLDB Document ID: 105700 38 Nicholas, in “Bianca-Bonell Commentary on the International Sales Law”, Giuffrè: Milan (1987), p 483 39 Barry Nicholas, “International Sales: The United Nations Convention on Contracts for the International Sale of Goods”, Galston & Smit ed., Matthew Bender (1984), Ch 5, p 5-1 to 5-24 40 Nives Povrzenic, “Interpretation and Gap-filling Under the United Nations Convention on Contracts for the International Sale of Goods”, Pace Law School Institute of International Commercial Law Database, http://www.cisg.law.pace.edu/cisg/biblio/gap-fill.html, last visited on 14 May 2014 41 Joern Rimke, Force majeure and hardship: Application in international trade practice with specific regard to CISG and the UNIDROIT Principles of International Commercial Contracts: Pace Review of the Convention on Contracts for the International Sale of Goods, Kluwer (1999-2000), p 218; available at: 42 Schlechtriem, “Internationales Kaufrecht” (4th ed.), J.C.B Mohr (Paul Siebeck) (2007) 43 Peter Schlechtriem, “Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods”, Manz, Vienna (1986) 44 H Stoll and G Gruber, Article 80 para 7, in “Commentary on the UN Convention on the International Sale of Goods (CISG)” (2nd ed.), Oxford University Press (2005) 45 Tallon, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 46 D Yates, “Exclusion Clauses in Contracts”, 2nd Edition (1982), Sweet & Maxwell 47 R Zimmermann, “The Law of Obligations: Roma Foundations of the Civilian Tradition”, Juta & Co (1990), p 1010 et seq Legal Writing 48 Comment and Notes to PECL Art 8:108: Note 1; available at: 49 Chengwei Liu, “Remedies for Non-performance: Perspectives from CISG, UNIDROIT Principles & PECL” (2003), http://www.cisg.law.pace.edu/cisg/ biblio/chengwei-74.html#ch14 (last visited 11 June 2014) 50 Chengwei Liu, “Force Majeure, Perspectives from CISG, UNIDROIT Principles, PECL and Case Law” (2nd edition), Pace Law School Institute of International Commercial Law Database, http://cisgw3.law.pace.edu/cisg/biblio/liu6.html, last visited 16 May 2014 51 Friederike Schäfer, “Commentary on whether and the extent to which the UNIDROIT Principles may be used to help interpret Article 80 of CISG”, Pace Law School Institute of International Commercial Law Database, http://cisgw3.law.pace.edu/cisg/principles/uni80.html#1, last visited 28 May 2014 52 Ingeborg Schwenzer and Simon Manner, “The Pot Calling the Kettle Black: The Impact of the Non-Breaching Party’s (Non-)Behaviour on its CISGRemedies”, in “Sharing International Commercial Law across National Boundaries: Festschrift for Albert H Kritzer on the Occasion of his Eightieth Birthday”, Wildy, Simmonds & Hill Publishing (2008) Legal Journals 53 E Allan Farnsworth, “Damages and Specific Relief” (1979), 27 American Journal of Comparative Law 249 54 Muna Ndulo, “The Vienna Sales Convention 1980 and the Hague Uniform Laws on International Sale of Goods 1964: A Comparative Analysis” (1989), 38 International and Comparative Law Quarterly Cases and Case Digests 55 Amtsgericht München, Germany, 23 June 1995, Unilex 56 Anaconda Iran Ltd v Iran, 13 Iran-US Claims Tribunal Report 1986, p 211; available at: ; TLDB Document ID: 231800 57 Arrondissementsrechtsbank’s-Hertogenbosch, the Netherlands, October 1998, Unilex 58 Bulgarian Chamber of Commerce and Industry, Bulgaria, 12 February 1998, Unilex 59 Bulgarian Chamber of Commerce and Industry, Bulgaria, 24 April 1996, Unilex 60 Bulgarian Chamber of Commerce and Industry, Bulgaria, April 1996, Unilex 61 CLOUT case No 104 [Arbitration Court of the International Chamber of Commerce, 1993 (Arbitral award No 7197)] 62 CLOUT case No 133 [Oberlandesgericht München, Germany, February 1995] 63 CLOUT case No 140 [Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Russian Federation, 16 March 1995 (Arbitral award No 155/1994)] 64 CLOUT case No 176 [Oberster Gerichtshof, Austria, February 1996] 65 CLOUT case No 273 [Oberlandesgericht München, Germany, July 1997] 66 CLOUT case No 282 [Oberlandesgericht Koblenz, Germany, 31 January 1997] 67 CLOUT case No 378 [Tribunale di Vigevano, Italy, 12 July 2000] 68 CLOUT case No 596 [Oberlandesgericht Zweibrücken, Germany, February 2004] 69 Hof van Cassatie, Belgium, 19 June 2009 (Scafom International BV v Lorraine Tubes S.A.S.) 70 Information Letter No 29 of the High Arbitration Court of the Russian Federation, Russian Federation, 16 February 1998, Unilex 71 International Centre for Dispute Resolution of the American Arbitration Association, United States, 23 October 2007 (Macromex Srl v Globex International Inc.), affirmed by U.S District Court, Southern District of New York, United States, 16 April 2008, affirmed by U.S Court of Appeals for the Second Circuit, United States, 26 May 2009 72 Judgement in ICC Arbitration Case No 7585 of 1992 73 Judgment of Austria Oberster Gerichtshof [Supreme Court] No 10 Ob 518/95 on February 1996, available at http://cisgw3.law.pace.edu/cases/960206a3.html 74 Oberlandesgericht Düsseldorf, Germany, 18 November 1993 75 Oberlandesgericht Hamburg, Germany, 25 January 2008 (Café inventory case) 76 Oberlandesgericht Hamburg, Germany, July 1997, Unilex 77 Rechtbank van Koophandel Hasselt, Belgium, May 1995, Unilex 78 The Bundesgerichtshof (CLOUT case No 271 [Bundesgerichtshof, Germany, 24 March 1999]) generalized that a supplier’s breach is normally something that, for purposes of Article 79, the seller must avoid or overcome 79 United Nations Commission on International Trade Law, UNCITRAL Digest of Case Law on the United Nations Convention on the International Sale of Goods (2012), p 269; See also CLOUT case No 422 [Oberster Gerichtshof, Austria, 29 June 1999], Unilex 80 Zurich Chamber of Commerce, Switzerland, 31 May 1996 (Arbitral award No ZHK 273/95), Unilex Miscellaneous 81 Black’s Law Dictionary, (8th edition, 2004) 82 Concise Oxford English Dictionary, Eleventh Edition 83 Quoc Hung, “Viet Nam advised to join int’l trade convention”, The Saigon Times Daily, September 2010 last visited 27 May 2014 84 Oxford Advanced Learner’s Dictionary, (New Edition, 1992) 85 Princeton University, Definition of “Pacta sunt servanda”, last visited on 16 May 2014 86 Jacob Ziegel, “Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods” (1981) ... works in analyzing and evaluating the rule on exemption of CISG Some of them even provide the origin of the solutions in the convention by the way of comparing them to principles of national laws. .. being unanimous in many aspects of the rule, the authors of the aforesaid writings have different opinions on certain confusing points within the text of CISG For instance, whether the breach of. .. this thesis ? ?The Legal Consequences of Exemption under CISG 1980 – in Comparison with Vietnamese Laws? ?? is wholly my own work, unless otherwise referenced or acknowledged, under the supervision of
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