On Identifying The Hardship In CISG

In view of whether the scope of application of the exemption clause of the Article 79 of the CISG contains Hardship,Opinion No.20 on Hardship issued by the Advisory Committee of CISG in February 2020 formally indicates that CISG is applicable to Hardship.The term obstacles used in the exemption clause of the Article79 of CISG contains Hardship.Based on the nature of CISG as an international uniform rule,when the parties choose CISG as the applicable law of the contract,it is concluded that the identification of Hardship in CISG should be directly based on CISG,but the ambiguity of the meaning of Article 79 of CISG brings challenges to the accurate identification of Hardship.With the entry into force of the Civil Code of the PRC,Chinese judges need to avoid the interference of domestic law rules when identifying Hardship in CISG.In order to realize the accurate identification of Hardship in CISG from the perspective of China,it is necessary to clarify the controversial elements and identification factors of Hardship,and pay attention to the differences and similarities between Chinese domestic law rules and CISG.From the Chinese perspective in identifying Hardship in CISG,the differences between Chinese domestic law rules and CISG Article 79 on the constituent elements of Hardship are mainly due to the different requirements for the occurrence of Hardship and the element of cannot be avoided or overcome.Since there is no rule to adjust the wrong expression of intention in CISG,the legal loopholes in the time element of Hardship should be interpreted with leniency,and Hardship occurring before the conclusion of the contract can also be adjusted by Article 79 of CISG.The element of cannot avoid or overcome does not mean objective can not.The reason is the CISG used the unified legislation of the Hardship and force majeure.Although the expression is different,but there is no substantive difference in the other constituent elements.In addition,in terms of specific identification factors,different from Chinese domestic law emphasizes the distinction between Hardship and commercial risks,CISG does not need to make this distinction.In terms of clarifying the controversy over the constitutive requirements and identification factors of Hardship,the characteristics and elements of the constituent elements of Hardship should be refined.First of all,the element that cannot be controlled have the two characteristics of objectivity and externality.Due to the dual ambiguity of externality,it should be clarified that the real connotation of externality is that the causes of Hardship should be outside the scope of risk control of the parties,and the scope of risk control is a non-physical space concept that needs to be specifically identified in combination with the management and control ability of the parties.Secondly,the standard of unforeseen element is the standard of reasonable foresight.Under this standard,it is necessary to clarify that the preset rational subject is a professional in the field of specific international trade,so it has the corresponding professional knowledge and practical experience,and the ability to foresee different types of Hardship is also different.In addition,the middle level of predictability is more in line with the requirements of reasonable predictability standards,which can effectively reduce the ambiguity of reasonable predictability standards.Again,the elements of can not avoid or overcome and cause the performance of obligations to be too heavy should be analyzed as a whole,which causes the manifestations of element of performance of obligations to be too heavy including the increase in the cost of performance and reduce the value of performance;in order to achieve the unity of operability and comprehensiveness,we should adopt a comprehensive judgment based on the specific percentage value standard and supplemented by the rationality judgment standard.Finally,based on the maintenance of the unity of CISG application,it is more reasonable to adopt a leniency explanation for the occurrence of Hardship,and CISG can also regulate the Hardship that occurred before the conclusion.In terms of specific identification factors,first,it is necessary to make a general identification of whether the commercial risks represented by market price fluctuations are in line with the Hardship from the perspective of constitutive requirements,in which more stringent standards should be adopted for speculative transactions.Second,the long-term contract in identifying the Hardship there are special points,should be long-term contract as a whole to identify the extent of the element of Hardship;third,the threshold for determining the degree of Hardship should be based on the actual loss.The hedging behavior of the parties should consider the analogy application of the rule of profit and loss offset in determining the Hardship.