국제매매계약에 대한 국제소송과 국제상사중재에서의 특정이행청구의 범위와 한계

The United Nations Convention on Contracts for the International Sale of Goods(CISG) is a compromise between the continental legal system and common law system. The primary remedy for non-performance in CISG is not damages, but the enforcement of performance. In contrast, common law grants damages as the primary remedy and specific performance as exceptional. A contracting state is allowed to make a declaration to the effect that its courts should enforce remedies in CISG in line with the prevailing domestic law philosophy. In practice it would be difficult to draft such a declaration suitable for the text of CISG. Therefore, instead of depending on such a declaration, Article 28 CISG grants national courts discretion in administering CISG with respect to specific performance in such a way as not to disrupt the established domestic legal order. By exercising this discretion common law courts could avail themselves of the outcome of a declaration to similar effect. This paper examines the scope and limitation of Article 28 in light of components and amendment of wording of the provision, and the need to promote uniformity in its application. There is little case law on this provision. This paper could shows guidelines with respect to specific performance for national courts and arbitral tribunals by clarifying the scope and limitation of specific performance as a remedy for non-performance. It remains to be seen how to delineate the scope of the provision and to promote uniformity in application of CISG in doing so in national courts and arbitral tribunals.