Art 28 permits the forum to apply its own legal principles when faced with a demand for performance of an obligation
“If, in accordance with the provisions of this Convention, one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgment for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention”
Anticipatory Breach
Art 71 allows a party to suspend performance of his obligations if, after the conclusion of the contract, it becomes apparent that the other party will not perform a substantial part of his obligations as a result of:
a serious deficiency in his ability to perform or in his creditworthiness; or
his conduct in preparing to perform or in performing the contract.
Art 72 provides that if before the date for performance it is clear that one party will commit a fundamental breach, then the other party may avoid the contract
No notice required if party has already declared he will breach
The Damages Remedy
Under CISG, damages remedy is available to injured sellers and buyers whether or not the breach is fundamental, and no showing of fault required
Art 74 Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract.
Importantly, Art 74 expressly recognizes the right of the aggrieved party to recover lost profits as part of the damages claim
