Introduction
Late delivery in international contracts has emerged as a critical issue in the post-COVID era, where global supply chains are under constant strain. Wars, sanctions, port congestion, and logistical bottlenecks have all contributed to frequent delays in the performance of international sales agreements. For businesses engaged in cross-border trade, the consequences of late delivery can be severe, ranging from production shutdowns to financial penalties. In this context, understanding how international legal frameworks — particularly the CISG (United Nations Convention on Contracts for the International Sale of Goods) and the UNIDROIT Principles of International Commercial Contracts — regulate late delivery is essential. These instruments offer remedies that balance commercial certainty with fairness, addressing damages, termination, and penalty clauses.
Late Delivery in International Trade: Causes and Risks
Late delivery is not a new challenge, but global supply chain disruptions have magnified its frequency and impact. Common causes include:
- Global health crises such as COVID-19, which caused border closures and transport restrictions.
- Armed conflicts and sanctions, creating delays in shipping routes or customs clearance.
- Port congestion and container shortages, leading to weeks of waiting times.
- Natural disasters or extreme weather, disrupting production and transport.
For buyers, the risks involve loss of production, reputational harm, and potential breach of their own downstream contracts. For sellers, the risk often translates into liability for damages, claims for termination, or enforcement of penalty clauses. This makes the legal treatment of late delivery in international contracts a cornerstone of commercial certainty.
Legal Frameworks Governing Late Delivery
CISG Approach
The CISG, adopted by over 90 countries, provides a uniform set of rules for international sales contracts. Under Article 33, the seller must deliver the goods at the agreed time, or within a reasonable period if no date is fixed. Failure to meet this obligation constitutes a breach.
Key remedies under the CISG include:
- Damages (Article 74–77):
The buyer may claim compensation for losses resulting from the delay, including lost profits, provided they were foreseeable at the time of contract formation. - Fixing an Additional Period (Nachfrist, Article 47):
The buyer may grant the seller a reasonable extension. If delivery still does not occur, the buyer may declare the contract avoided. - Avoidance of Contract (Article 49):
If late delivery amounts to a fundamental breach — substantially depriving the buyer of the expected benefit — the buyer may terminate. - Specific Performance (Article 46):
The buyer can demand actual delivery, subject to the domestic legal system of the forum.
UNIDROIT Principles Approach
The UNIDROIT Principles of International Commercial Contracts supplement or guide contract interpretation where CISG or national law is silent. They reinforce the importance of timely performance and recognize the right to damages, termination, and interest on delayed performance.
- Article 7.1.1: Non-performance includes late performance, making the debtor liable.
- Article 7.4.1–7.4.4: Damages cover actual loss and loss of profit, provided they were foreseeable.
- Article 7.3.1: Termination is permitted where non-performance is fundamental.
- Article 7.4.9: Creditors are entitled to interest for late payments, ensuring compensation for financial delays.
Together, CISG and UNIDROIT provide complementary remedies that allow international traders to seek both monetary compensation and equitable relief.
Remedies in Practice: Damages, Termination, and Penalty Clauses
Damages
Damages remain the primary remedy for late delivery. Under both CISG and UNIDROIT, damages include direct losses (e.g., storage fees, substitute purchases) and indirect losses (e.g., lost resale opportunities). The principle of foreseeability limits liability, ensuring sellers are not held accountable for extraordinary or unforeseeable losses.
Termination of the Contract
Termination is not automatic. Under the CISG, the buyer must demonstrate that late delivery constitutes a fundamental breach. For example, delivering perishable goods weeks late may justify termination, while non-essential machinery delivered slightly late may not. UNIDROIT takes a similar approach, emphasizing material non-performance.
Penalty and Liquidated Damages Clauses
In international commerce, parties frequently include penalty clauses or liquidated damages provisions to address late delivery. These clauses set predetermined compensation, simplifying enforcement. While the CISG does not explicitly regulate penalty clauses, UNIDROIT recognizes their enforceability, provided they are not manifestly excessive. Many arbitral tribunals also enforce such clauses, viewing them as expressions of party autonomy.
Practical Drafting Tips to Avoid Disputes
- Define “on-time delivery” precisely, including shipping terms (Incoterms 2020).
- Include a grace period or Nachfrist clause, reflecting CISG Article 47.
- Set clear liquidated damages rates to pre-allocate risk.
- Integrate force majeure clauses aligned with CISG Article 79 and UNIDROIT 7.1.7 to address unforeseeable disruptions.
- Choose governing law and dispute resolution mechanisms carefully, as remedies can vary under different legal systems.
By drafting with these considerations in mind, businesses can reduce uncertainty and strengthen enforcement of their contractual rights.
Arbitration and Judicial Enforcement
Most late delivery disputes end up in arbitration before institutions such as the ICC, LCIA, or ISTAC. Arbitrators often rely on CISG and UNIDROIT as sources of transnational commercial law. Courts, particularly in CISG-member states, also directly apply these rules, creating a predictable framework for resolving disputes.
However, remedies can differ based on procedural rules and enforcement practices. For instance, some courts may limit specific performance, while arbitral tribunals are more flexible. Therefore, businesses should align their contracts with both substantive law (CISG/UNIDROIT) and procedural mechanisms (arbitration/mediation).
Conclusion
Late delivery in international contracts is no longer a rare exception — it has become a common risk in today’s interconnected economy. By relying on the remedies offered under CISG and UNIDROIT Principles, businesses can navigate disputes with greater certainty. Damages, termination, and penalty clauses provide a structured response to breaches, ensuring that both buyers and sellers are protected. Ultimately, proactive contract drafting and awareness of available remedies are the best strategies to mitigate the impact of supply chain disruptions. For companies engaged in global trade, mastering the rules on late delivery in international contracts is not optional — it is a necessity for survival and growth.
Yanıt yok