the Convention reflects the civil law’s preference for performance over damages. P.

Art. 28 has generated a good bit of scholarly attention but has been the topic of very little
practical controversy. P.21Magnus, in: Ferrari/Flechtner/Brand, Draft Digest and Beyond (2003),
p. 326. Zurück

It also appears to run counter to the CISG’s general approach of prioritizing claims for
performance over money damages.
It is taken for granted in civil legal systems that an aggrieved party is entitled to demand
performance. This derives from the principle pacta sunt servanda – contracts are to be honoured.
Para 5
There is a moral underpinning to this position: “the binding nature of the performance is
of the utmost importance to the civil law, and the courts accordingly bind people to their
promises Curran, Comparative Law: An Introduction (2002) pp. 24 seq.; see also Bejesky, The
Evolution in and International Convergence of the Doctrine of Specific Performance in
Three Types of States, 13 Indiana International and Comparative Law Review (2003) 353
(375 et seq.).

in Germany, specific performance is the preferred remedy and is excluded only if, for some
reason, performance is not possible.
French law distinguishes between obligations to “give,” which are subject to an order for
performance, and obligations to “do or not do,” which are theoretically subject only to an award
for damages. zur Fussnote 24
Art. 28 can only be read in conjunction with other substantive CISG articles.
The most straightforward, and most convincing, interpretation of this phrase is that it refers to
the forum’s municipal law on remedies.
This was the approach adopted by the only court decision to have addressed Art. 28. [US District
Court, Northern District of Illinois (U.S.) 7 December 1999 (Steel bars), Magellan International
Corp.  v Salzgitter Handel GmbH, CISG Online 439 (Pace).] In Magellan v Salzgitter, a U.S.
buyer of steel sought specific performance of specially manufactured steel because it alleged it
was unable to engage in a substitute transaction. The U.S. District Court construed Art. 28 as
directing it to look to the UCC to determine whether such relief would be available. zur Fussnote
49 Since inability to cover is one of the “appropriate circumstances” in which a buyer can seek
specific relief, the court allowed the case, which was at a preliminary stage, to go forward.
Randnummer 17 Art. 28 refers to “court,” although many international disputes are resolved by
arbitral tribunals. Thus, the question arises what, if any, effect Art. 28 has on disputes heard by
arbitral tribunals. The most reasonable approach is to apply Art. 28 equally to arbitral tribunals
and to courts. zur Fussnote 50 This is also consistent with the usage in the Secretariat’s
commentary to the predecessor to Art. 46: “Although the buyer has a right to the assistance of a
court or arbitral tribunal to enforce the seller’s obligation to perform the contract, [Art. 28 CISG]
limits that right to a certain degree.” zur Fussnote 51
The ability of arbitral tribunals to order specific performance will depend on the lex arbitri and
the precise nature of the relief sought. [Gabriel, in: Flechtner/Brand/Walter, Drafting Contracts
(2007), p. 530. The enforceability of the award, if made in a New York Convention state, will
depend on the “rules of procedure of the territory where the award is relied upon, under the
conditions laid down in the following articles.”]
Thus, in the context of an international sale, specific performance might be more appropriate
than it would be in the domestic context. It is reasonable to suggest that courts take into account
the international features, and the peculiarities attendant on the individual contract of sale, in
assessing whether specific performance would be an appropriate remedy.
Yet it is generally agreed that parties cannot exclude Art. 28’s application to their contract.
[Reiley, International Sales Contracts (2008) p. 228; Huber, in: Huber/Mullis, The CISG (2007),
p. 190; Müller-Chen, in: Schlechtriem/Schwenzer, Commentary (2016), Art. 28 para. 24. zurück]
dispute by including in their contract a forum selection clause pointing to a jurisdiction that
favours performance.
Art. 7.2.5 PICC. This exercise in party autonomy could be limited by the laws of the state
in which enforcement is sought, in much the same way that Art. 28 CISG limits that
remedy, if the jurisdiction views its laws as non-derogable mandatory laws or as court
rules not subject to alteration by the parties. See, e. g., Gabriel, Contracts for the Sale of
Goods: A Comparison of US and International Law (2009) p. 120; Supreme Court (U.S.)
25 March 2008, Hall Street Associates, LLC v Mattel, Inc., 552 U.S. 576 (holding that
parties could not alter the standard of review accorded by courts to arbitral awards under
the Federal Arbitration Act).