Article 79 CISG: Testing the Effectiveness of the CISG in International Trade through the Lens of the COVID-19 Outbreak

The resilience of contracts and the role of contract law has been put to the test in responding to the global COVID-19 pandemic. Various government measures significantly impacted international trading relationships. Supply chain disruptions and uncertainty continue to pose a threat as different countries approach the pandemic with differing priorities and interests. Therefore, parties to international sales contracts seek to identify ways to keep existing commitments, protect against future losses, be compensated for losses they have suffered, and decide whether it is profitable to keep the contract in place. It is vital to examine the legal issues around the possible legal responses to the COVID-19 crisis. However, it is plausible that the lack of predictability regarding the scope, time, and location of governmental measures will introduce further complications. Moreover, the impact of the COVID-19-related measures extends beyond the contractual parties, contributing to adverse social consequences worldwide. The United Nations Convention on Contracts for the International Sale of Goods (CISG or Convention) should reduce these complications by providing predictability and certainty in dealing with the consequences of the pandemic through its uniform rules. The reality, however, is far from ideal. The impact of COVID-19 will bring further challenges in the uniform application of the Convention; and it will do so through one of its most controversial provisions: Article 79. Through the lens of Article 79, this chapter will discuss the effectiveness of CISG as an instrument of public international law adopted with the goal of unification of international sales law. It will (re)consider the negotiation leading to the final text of Article 79, highlight trends in its interpretation and application, and consider possible routes to uniform interpretation and application in the post-pandemic era. In doing so, the chapter will explore whether and to what extent interpretation of Article 79 can encompass adverse social impact in trading relationships between the buyers of the global north and the suppliers of the global south.