CISG 제79조와 Hardship : 최신 CISG 자문위원회 의견 제20호를 중심으로

In this paper, I reviewed the latest official opinion of the CISG Advisory Council, Opinion No. 20, on the relationship between “Article 79” of the United Nations Convention on Contracts for the International Sale of Goods(“CISG”) and “hardship”. For this purpose, I first looked into the hardship doctrines found in domestic laws and international uniform laws. Then I looked into Article 79 of the CISG, focusing on its legislative history and also the academic discussions on its applicability to the hardship situations. In addition, the contents of Official Opinion No. 7 of the CISG Advisory Council was examined. Lastly, I reviewed and critically analyzed the Official Opinion No. 20 of the CISG Advisory Council. The Opinion No. 20 offers a fairly straightforward answers to the two problems often discussed: (1) whether Article 79 can be applied to hardship situation, or, put it in another way, whether the term “impediment” in Article 79 includes the concept of “(economic) hardship” and (2) if the term impediment includes the concept of hardship, then what remedies can be allowed to a party suffering from a hardship under Article 79. In summary, Opinion No. 20’s position is that Article 79 clearly applies to hardship situations and that the only remedy available for hardship under the CISG is that allowed under the article, that is, the exemption from the liability of damages. Opinion No. 20 is especially clear about its position that contract renegotiation or adaptation is not available remedy of hardship for the CISG contracts. Acknowledging the fact that Opinion No. 20 provided us with clear answers to the so far much debated issues, I found that it is difficult to agree with the conclusion of the Opinion. First, while the Opinion bases its conclusion that no gap exists regarding the remedies for the hardship in the CISG on the proposition that Article 79 applies to hardship, the very issue of the applicability of Article 79 to the hardship situation is still debatable. Secondly, Opinion No. 20 seems to overlook the evident fact that the concept of “hardship” developed under various hardship doctrines is inherently different from the concept of force majeure, which is essentially the same as the “impediment” of Article 79. In my opinion, what CISG Advisory Council actually wanted to claim in Opinion No. 20 was that they do not wish to allow hardship doctrine to be applied to the CISG contracts. Although the decision might be warranted in terms of policy, it must go through the revision of the CISG, not through its interpretation. Until the revision of the CISG clearly reflecting such policy, I believe the gaps can be seen in the CISG regarding the issues related to hardship, and that those can be cured according to Article 7(2) of the CISG or other relevant provisions.