Where it wishes to remain cautious about remedies if it is unsure that a breach is fundamental, or where it wants to ‘transform’ a non-fundamental breach into a fundamental one by awaiting an extension period. 

(a) Where the breach is non-fundamental, or where the breach is fundamental but the seller is still interested in upholding the contract.

(b) If the buyer has not paid the purchase price or taken delivery of the goods.

The circumstances of the case. If seasonal goods are involved, the period may be rather short; in other circumstances, a longer period may equally be regarded as reasonable.

Because it is important that the seller give the buyer certainty concerning the period after which it may resort to other remedies, including avoidance of the contract.

Yes, provided that the avoidance does not become effective until expiry of the additional period granted. In such cases, the seller should ensure that the additional period granted is reasonable, because failure to grant a reasonable period may result in any consequent avoidance being declared invalid. 

Yes it was. As stated in section II of Article 63, where there are doubts about the fundamental nature of the breach in question, it is always wise to set a Nachfrist. Once a Nachfrist has been set and the buyer still does not comply with the contract, the seller can avoid even without demonstrating that the breach in question is fundamental (see also Art 64 CISG).

Arguably, no. It also depends on how strict the tribunal is held to the requested relief. Art. 63 CISG gives the seller the right to fix an additional period of time for performance of the buyer. Here, Claimant requested performance pursuant to a specific delivery schedule set by it based on the end date it set for the additional period for the buyer’s performance and time required to restart production according to Claimant (3 months). Namely, Claimant assumed that Respondent would pay in full until 1 April 2022, after which it would trigger the first delivery for July 2022 based on the 3-month period it required. It then proposed continuing with monthly deliveries comparable to the previously assumed monthly payments each triggering a monthly delivery one month later pursuant to Schedule 3.1 of the parties’ agreement.

The Tribunal granted the request, in principle adopting Claimant’s proposed new schedule, subject to the condition that delivery would only commence after Respondent had paid all outstanding amounts in full and provided the required letter of credit. 

The tribunal noted that “[a]s far as the payment terms included in the Agreement are concerned, […] Claimant was to receive advance payment for the shipment [for the first payment] pursuant to Article 4.1 (a) of the Agreement. for the shipment of the next [shipments] it would receive monthly payments through irrevocable letters of credit upon presentation of the relevant documents to the bank pursuant to Article 4.1(b) of the Agreement.” To fix the new payment date (so-called “Trigger Date”) and the new delivery schedule, the tribunal referred to Art. 63 CISG as “allow[ing] Claimant to fix a new reasonable delivery schedule” (para. 182) and to Article 62 of the CISG in conjunction with Articles 53 and 60 of the CISG, allowing Claimant to request an order that Respondent take delivery of the Product. Based on that it found that (i) a revocable letter of credit for the full overdue payment was due no later than two weeks after the date of the award, and (ii) this would trigger the same delivery schedule as per the contract with monthly deliveries (paras. 174, 177, 178, 179, 182). 

The delivery schedule in the award matches QMEA’s proposal in structure and timing but is conditional on payment instead of the date assumed by Claimant (1 April 2025).

This reasoning is dogmatically problematic for several reasons:

- The seller, not a court or tribunal, may grant the additional time (see also discussion around Art. 61(3) in the chapter on Article 63). Claimant expressly granted additional time in 2021, then impliedly granted it until 1 April 2022, then leaves the new time open, as long as the three-month period to restart production is observed. 

- Likewise, the buyer, not the seller, a court, or tribunal may set delivery dates (Art. 47). Here, the seller proposed delivery dates differing from the contractual delivery dates (not immediately, monthly after payment, but with a three-month delay).

- If the tribunal bases the delivery schedule on the contract, stipulating monthly deliveries, it must also keep the connection between payment and delivery, i.e. one month. Instead, here it requests the buyer to pay within two weeks of the award and then grants the seller three months to restart production (or less due to the delay between the requested relief and the award). That changes the delivery obligation, not the payment obligation.