The Research On The Standard Of Proving Loss Under The CISG

The damage compensation system plays an important role in the international contract for the sale of goods.As one of the most far-reaching conventions in the field of international trade law,one of the major achievements of CISG was the establishment of a more complete system of compensation for damages.Under article74 of the CISG,if a party to the contract breaches the contract,the aggrieved party has the right to seek compensation from the breaching party for losses including profits.Based on the principle of who advocate,who the burden of proof,if the aggrieved party exercises the right of claim,he must prove that he has suffered corresponding damages.There is a standard for proof of damages and the aggrieved party's proof of the damages must meet the standard before he can be compensated.CISG,however,does not specify the standard of proof for damages.There is no conclusion on how to make a legal interpretation of this gap either.In cases which CISG was applied,courts and the arbitral tribunals have different understanding of the standard of proof,which undermines the uniform application of the Convention and is not conducive to the exercise of the aggrieved party's right to claim.On the basis of combing the concept of proof standard of compensation for damages,this article sums up the different viewpoints of the proof standard under the CISG in theory and practice,tries to establish a uniform standard of proof of damages under the CISG,and combines the existing case to illustrate the specific application of standards in practice.This article is divided into three parts.The first part is an overview of the standard of proving damages,including two subsections.The first section mainly introduces the connotation of the standard of proving damages.What the proof standard needs to solve is the issue of the content and the level of damage that the aggrieved party needs to prove against the loss.Looking at the standard of proving damages in various countries' domestic laws and international documents,we can see that the standard of proof generally contains three parts: the content of the proof,the level of the proof and the discretion of the court.The aggrieved party's exercise of the right to claim needs to requires proof of the fact of the damage and the amount of the damage,the fact of the damage and the amount of damage.The domestic laws and international documents have the greatest differences for the level of proof.If the aggrieved party's proof of damages does not reach the level of proof established by law,he does not necessarily deprive itself of the opportunity to obtain compensation because the court has the discretion to determine the amount of compensation on its own in this situation.The second section summarizes the different views on whether CISG adjusts the standard of proving damages.Most of these opinions center on the dispute between substantive law and procedure law.The second part establishes the standard of proving damages under the CISG.There are three sections.The first section demonstrates the feasibility and necessity of the proof standard.The dispute between substantive law and procedure law has limitations.Different legal systems have different divisions between them.It is only an artificial method of classification,and the difference between the two should not be over-emphasized.In the case of evidence and proof,the limitations of the dispute between substantive law and procedure law is infinitely amplified.This shows that when discussing whether CISG adjusts the standard of proof,it cannot simply regard the dispute as a decisive factor.On the other hand,article 7(1)of the CISG states that the interpretation of the convention should take into account its international character and the purpose of promoting the uniform application.Excessive recourse to widely differing domestic laws in the application of CISG to solve the problem of proof standards is not conducive to the establishment of a set of world-wide commercial norms,and runs counter to the purpose of CISG.The second section is mainly to find a way to establish the standard of proving damages under the CISG.Article 7 of the CISG stipulates the interpretation principles of the Convention.The establishment of a standard of proving damages under the CISG must proceed from the provisions of Article 7.Matters not covered by the Convention should first and foremost be settled in accordance with the general principles on which the convention was based.Throughout the full text of the CISG,the principle of full compensation and the principle of reasonableness have set the direction for the establishment of the standard of proving damages.The standard should not be too strict and the level of proof should be based on reasonableness.As a legal restatement document for international commercial contracts,one of the purposes of the PICC is to help explain international uniform legal documents.We can learn from the provisions when establishing the standard under the CISG.On the basis of the first two sections,the third section preliminarily established the standard of proving damages under the CISG.If the aggrieved party claims damages by the breaching party according to CISG,he shall prove the facts and the amount of the damages.The damages shall be established on the basis of a reasonable degree of certainty.If the victim's certification fails to reach this level,the court may determine the amount of compensation at its discretion.The evidence available indicates that the aggrieved party suffered losses due to the other party's breach of contract.However,if the aggrieved party is limited to the specific type of loss or the specific circumstances at the time of the breach and that the proof is difficult to meet the legal standard,the court can exercise its discretion in accordance with the law,synthesize the available evidence and determine the amount of damages in a fair and reasonable manner.The third part illustrates the application of the standard of proof of damages under the CISG,which is divided into two sections.In practice,the damage of the injured party to an international contract for the sale of goods falls into two main categories: damage suffered and lost benefits.In practice,the damage of the aggrieved party to an international contract for the sale of goods falls into two main categories:loss suffered and lost profits.The first section sets out the proof of the loss suffered.The evidence used to justify the loss suffered is not limited to a certain type.It depends on the nature of the damage.As a whole,the aggrieved party can provide evidence of cost expenditure by providing the receipt,the report of the relevant agency or expert,the provision of a contract with a third party and a voucher for the costs of compensation actually paid to a third party to prove the liability owed to the third party to reach the reasonable degree of certainty of damages.The second section explains the proof of the lost profits.The lost profits has a nature of uncertainty,which allows the aggrieved party to prove his loss only based on presumption.Therefore,the difficulty in proving lost profits is higher than in loss suffered.To prove the loss of the price difference,the aggrieved party needs to prove the price of the original contract and the substitute transaction,reasonableness of the substitute transaction in terms of time and price,or the current price of the goods.The aggrieved buyer proves the resale profit loss must prove that the actual resale contract price is lower than the original one.If necessary,he can prove that the breach of contract by the breaching party is directly related to the terms of the resale contract.In proving the expected profit loss,the buyer shall provide a statement by the customer specifying the termination of the business dealings with the buyer due to the seller's breach of contract,or changes in the business data before and after the breach in order to prove that the seller's breach resulted in a loss of customers and a reduction in sales.Futhermore,the buyer was required to submit a record of trade costs and profits in recent years as the basis for profit calculation.Lost volume and the aggrieved party's future profits are affected by a variety of factors and the proof of the aggrieved party is difficult to reach a reasonable degree of certainty.They rely more on the discretion of courts and arbitral tribunals.