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in Art. IV CITES

CITES  
CITES Convention (1973, as amended)

1. All trade in specimens of species included in Appendix II shall be in accordance with the provisions of this Article.
2. The export of any specimen of a species included in Appendix II shall require the prior grant and presentation of an export permit. An export permit shall only be granted when the following conditions have been met:
(a) a Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species;
(b) a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora; and
(c) a Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment.
3. A Scientific Authority in each Party shall monitor both the export permits granted by that State for specimens of species included in Appendix II and the actual exports of such specimens. Whenever a Scientific Authority determines that the export of specimens of any such species should be limited in order to maintain that species throughout its range at a level consistent with its role in the ecosystems in which it occurs and well above the level at which that species might become eligible for inclusion in Appendix I, the Scientific Authority shall advise the appropriate Management Authority of suitable measures to be taken to limit the grant of export permits for specimens of that species.
4. The import of any specimen of a species included in Appendix II shall require the prior presentation of either an export permit or a re-export certificate.
5. The re-export of any specimen of a species included in Appendix II shall require the prior grant and presentation of a re-export certificate. A re-export certificate shall only be granted when the following conditions have been met:
(a) a Management Authority of the State of re-export is satisfied that the specimen was imported into that State in accordance with the provisions of the present Convention; and
(b) a Management Authority of the State of re-export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment.
6. The introduction from the sea of any specimen of a species included in Appendix II shall require the prior grant of a certificate from a Management Authority of the State of introduction. A certificate shall only be granted when the following conditions have been met:
(a) a Scientific Authority of the State of introduction advises that the introduction will not be detrimental to the survival of the species involved; and
(b) a Management Authority of the State of introduction is satisfied that any living specimen will be so handled as to minimize the risk of injury, damage to health or cruel treatment.
7. Certificates referred to in paragraph 6 of this Article may be granted on the advice of a Scientific Authority, in consultation with other national scientific authorities or, when appropriate, international scientific authorities, in respect of periods not exceeding one year for total numbers of specimens to be introduced in such periods.
Source: CITES
Imported:

UNCITRAL Digest CISG, Art. 28

Art. 28 CISG

This Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods (CISG) was prepared by the UNCITRAL Secretariat in cooperation with national correspondents and international experts. It may serve as a commentary on the CISG. The following excerpt contains the commentary on Article 28 CISG.

Recommended citation: UNCITRAL, Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods (2016), Art. 28, para. #.

 

Article 28

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 judgement 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.
 
 

OVERVIEW: MEANING AND PURPOSE OF THE PROVISION

1. The article constitutes a compromise between legal systems that deal differently with the right of a party to claim specific performance of the contract. According to article 28, a court is not obliged to grant specific performance under the Convention if it would not do so for similar sales contracts under its domestic law.

2. “Specific performance” means requiring the other party to perform its obligations under the contract through court action (see also articles 46 and 62). For example, the buyer may obtain a court order requiring the seller to deliver the quantity and quality of steel contracted for,1 or the seller may obtain an order requiring the buyer to pay.2

3. There is little case law on this provision; only a few cases, and even fewer with relevant discussion of article 28, have been reported thus far.3 In one case, a court stated that where the Convention entitles a party to claim specific performance, article 28 allows the seized court to look to the availability of such relief under its own substantive law in a like case.4If the national law would also grant specific performance in the case, there is no conflict with the Convention and no problem arises.5 If the national law would, however, disallow specific performance, alternative relief—in most cases, damages—could be granted instead.6 Article 28, however, merely provides that the court “is not bound” to adopt the solution of its national law regarding specific performance in the context of an international sale of goods governed by the Convention.

4. It has been held that a damages claim and a claim for specific performance are not necessarily inconsistent remedies; the creditor may therefore resort to both.7 And an arbitration tribunal found that the party to whom a duty is owed must raise a claim for specific performance within a reasonable time after it became aware of the non-performance of the duty.8

 
Notes

1 CLOUT case No. 417 [U.S. District Court, Northern District of Illinois, United States, 7 December 1999].

2 Obergericht des Kantons Bern, Switzerland, 1 December 2004, CISG-online No. 1192.

3 Zürich Arbitration, Switzerland, 31 May 1996 (specific performance denied because relevant national law (Russian or Swiss) did not provide for such remedy); CLOUT case No. 417 [U.S. District Court, Northern District of Illinois, United States, 7 December 1999]; Obergericht des Kantons Bern, Switzerland, 1 December 2004, CISG-online No. 1192; Arbitration Court of the International Chamber of Commerce, France, 2004 (Arbitral award No. 12173), Yearbook of Commercial Arbitration 2009, 111 (stating that a claim for liquidated damages does not exclude a claim for specific performance); International Arbitration Court of the Chamber of Commerce and Industry of the Russian Federation, Russian Federation, 30 January 2007 (Arbitral award No. 147/2005), Unilex (stating that a claim for specific performance must be made within reasonable time after the party became aware of non-performance; merely mentioning article 28 without further consideration); CLOUT case No. 636 [Cámara Nacional de Apelaciones en lo Comercial de Buenos Aires, Argentina, 21 July 2002].

4 CLOUT case No. 417 [U.S. District Court, Northern District of Illinois, United States, 7 December 1999] (“Simply put, [CISG article 28] looks to the availability of such relief under the UCC”). To the same effect with respect to Swiss internal law, Obergericht des Kantons Bern, Switzerland, 1 December 2004, CISG-online No. 1192.

5 That was the outcome in CLOUT case No. 417 [U.S. District Court, Northern District of Illinois, United States, 7 December 1999].

6 Zürich Arbitration, Switzerland, 31 May 1996 (damages granted instead of specific performance; it was held that ordering specific performance of an obligation to produce and deliver aluminum for a further eight or ten years would be inappropriate).

7 Arbitration Court of the International Chamber of Commerce, France, 2004 (Arbitral award No. 12173), Yearbook of Commercial Arbitration 2009, 111.

8 International Arbitration Court of the Chamber of Commerce and Industry of the Russian Federation, Russian Federation, 30 January 2007 (Arbitral award No. 147/2005), Unilex.

 

© United Nations. This text is reproduced with permission of the United Nations.

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