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Ewan McKendrick, Qiao Liu and Xiang Ren

This chapter, using two examples, focuses on the role played by international instruments such as the CISG and the PICC in the development of uniform laws and how that role is affected by national courts’ interpretation of such instruments. It is argued that these international instruments set out and promote a general consensus as to the most appropriate rules to be applied to international commercial contracts, such as the consensus as to the initial entitlement of a claimant to specific performance and also to the circumstances in which the remedy should not be available. However, such a consensus does not guarantee identity of outcome given the possibility that domestic courts or arbitrators drawn from national jurisdictions may interpret the text of an instrument through the lens of their own national law. Nevertheless, as shown in the application of the ‘fundamental breach’ provision in Article 25 of the CISG by the Supreme People’s Court of China in the case of ThyssenKrupp Metallurgical Products GmbH v Sinochem International (Overseas) Pte Ltd, a willingness on the part of a national court to engage with case law from other jurisdictions can to some extent alleviate this so-called ‘homeward trend’.