ICC award (no. 16369, YCA 2014 at 169) has held that the equilibrium of a contract is fundamentally altered when the value of the performance which the Respondent has to receive is “dramatically diminished”.

That might lead to the conclusion that this is a typical case of hardship.

However the Tribunal has gone further stating that “Indeed, when the parties to a contract of sale, for delivery over a period of time, agree on the market price at any point of such time, the seller may well be deemed to have assumed even the risk of not receiving any consideration in return for the goods sold”.

This conclusion is not convincing.

Are the effects of  hardship remedied by what may seem to be a rather hard award ?

 

Mauro Rubino-Sammartano, Partner

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