CLAIMANT 0800 FINAL 12072006

power in Mountain View [Clar. Q. 31]. After Equalec insisted on its Fuse Policy [Re. Ex. 1],
Claimant gave Respondent the opportunity to provide conforming goods [Statement of Claim 17; Cl.
Ex. 3; Re. Ex. 1]. Respondent was unwilling to promise timely delivery of conforming goods [Re.
Ex. 1 (suggesting a delivery timeframe “in several months yet”)]. As Respondent knew, an electrical
connection for the Fuse Boards was essential to meeting the development’s occupancy deadline of 1
Oct. 2005 [Re. Ex. 1; Statement of Claim 16]. Otherwise, Claimant risked significant penalties and
lost profits [id.]. Claimant was left with no reasonable option but to find another supplier.
75. Claimant reasonably declined to complain to the Commission. On 9 Sept. 2005, Respondent did
not mention the ESRA [Re. Ex. 1]. Even if Claimant was familiar with ESRA or had time to
investigate applicable laws, Claimant had no reasonable basis to suspect illegality (see supra 73). The
required time for Commission action indefinitely ranged from one week to over two years [Clar. Q.
30]. There was not enough time for Claimant to arrange representation and a properly documented
complaint to even initiate a Commission proceeding [“there was not sufficient time to start a proceeding,”
Re. Ex. 1]. Rather than running the substantial risk of greater damages, for which Respondent
would ultimately be liable, Claimant prudently limited losses and secured a connection to Equalec’s
electrical grid by promptly obtaining substitute fuse boards [Cl. Ex. 3; Statement of Claim 18].
B. Respondent could reasonably be expected to have taken the lack of complaint
into account beforehand.
76. Even if Respondent’s failure to perform was due to the lack of complaint, Respondent must further
prove that it “could not reasonably be expected to have taken the impediment into account at the
time of the conclusion of the contract” [Art. 79(1) CISG]. The Secretariat Commentary recognizes
the difficulty of this inquiry in that “[a]ll potential impediments to the performance of a contract are
foreseeable to one degree or another” [Secretariat Art. 65 5 (draft counterpart of Art. 79); see also Perillo
122]. It anticipated a two-step resolution to the problem of foreseeability in Art. 79. First, the
tribunal should enforce, per Art. 6 CISG, any agreement between the parties over the impediment
[Secretariat Art. 65 5]. Parties may agree explicitly that “the occurrence of the impending event would
exonerate the non-performing party” or implicitly that a party would “perform an act even though
certain impediments might arise” [Secretariat Art. 65 5; see also Tallon 576; Honnold 475; Nicholas84 5-
9; Stoll/Gruber 835]. Second, absent such an understanding, the Tribunal must make a “case-by-
case” determination of “whether the non-performing party could reasonably have been expected to
take it into account at the time of the conclusion of the contract” [Secretariat Art. 65 5]. The parties
did not explicitly agree to exonerate Respondent’s failure (1). The parties here implicitly understood
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