The Applicable Law Of Damages For Breach Of International Commercial Contract

This dissertation has implemented research on the damages for breach of contract , as prime remedy, under international commercial contract law from the perspective of comparative law and private international law. Based on the Statutory Civil Law system , Case Law system and International Uniform Substantive Law particularly the United Nations Convention on Contracts for the International Sale of Goods (1980), the positive and normative analysis have been realized in the respect of the fundamental theories , heads and limitation of damages as well as the exemption of liabilities and applicable law to govern upon which the author proposes his comments on how to frame the reasonable mechanism of contract law and private international law with Chinese characteristics. It's extended to address in six chapters.The First chapter analyzes the fundamental theories firstly . Mainly from the historical perspective , this chapter reviews the definition, limit and history of the system and evaluates the influence of the Doctrine of the Reliance Interest in Contract Damages established in the early of Twentieth Century , which laid a foundation for the research.The Second chapter involves the heads of damages. First of all, the positive analysis is exercised to the type of damages under Statutory Civil Law system and Case Law system , and then further study by normative analysis and defining the actual status on the type of damages under the United Nations Convention on Contracts for the International Sale of Goods (1980), UNIDROIT Principles of International Commercial Contracts (2004) and Principles of European Contract Law ( 2000).The Third chapter focuses on the research of limitation of damages . The limitation of damages is the core of damages for breach of contract, which happens naturally to be the focus to study. This part induced and summarized the rules of limitation of consequential damages under Case Law system , which are the Rules of Foreseeability and Duty to mitigate . However the Statutory Civil Law system mainly adopted the Rules of Causation and Contributory Negligence with some minor countries adopting combination of those Rules. And then the author attaches substantial analysis on limitation of damages under the United Nations Convention on Contracts for the International Sale of Goods, which suffered a great deal of controversies . And finally the author proposes his own view regarding how to establish & improve the Rules of Foreseeability in the Chinese Contract Law.The Fourth chapter analyzes the exemption of liability for damages. This part comparatively analyzes the statutory exemption and agreed exemption on the basis of positive norms of Statutory Civil Law system and Case Law system , which respectively deal with similarity and difference for the prerequisite and consequence pursuant to Force Majeure and Frustration of Purpose . It's based on the incorporation of judicial cases from some different leading countries that the author's point of view and conclusion are finalized regarding the construction and application of the clause of exemption liability in the International Uniform Substantive Law.The Fifth chapter analyzes the other remedies for breach of contract, such as Liquidated Damages, Penalty and Deposit, which are relevant to the damages for breach of contract. On the one hand , the positive norms of the Statutory Civil Law system recognize the compensation and penalty function of Liquidated Damages , Penalty and Deposit. On the other hand, the Case Law system denied the penalty consequence of those afore-said clauses in the private law and therefore it refuses to enforce those clauses . On the basis of Principle of Party Autonomy , the author advocates for the feasibility of application by incorporation of Liquidated Damages , Penalty and Deposit clauses into International Commercial Contracts subject to the non-violation of the Mandatory Norms and Public Order of Lex Forum. The Sixth Chapter discourses upon the applicable law for damages of breach of contract. On the top priority of this part, the author expounds the likely conflict arising from the application, in China, of the United Nations Convention on Contracts for the International Sale of Goods and then going on with Principles of Party Autonomy and Most Significant Relations in the applicable law as well as the consequences of the application of those Principles through the evidence of the judicial and legislative practices in the leading countries . By analyzing the general principles for the governing law of contract, this part deals further with the applicable law governing the damages for breach of contract in terms of comparative analysis and eventually draws a conclusion on the principles of applicable law for damages . Ultimately the author proposes relevant comments and suggestions for legislation in respect of the rules of applicable law in China covering the commercial contract with foreign element related.