RECOVERY OF DAMAGE CAUSED BY LATE PERFORMANCE OF OBLIGATIONS RESULTING FROM INTERNATIONAL COMMERCIAL CONTRACTS

This article analyses the different approaches in comparative law, arbitral practice and in doctrine regarding the institution of interest on late performance (default interest) allocated to compensate for the damage arising from the late performance of contractual obligations, known by most legal systems and instruments of uniform law. Despite the trend of harmonization of regulations in this area, national legislations enshrine different solutions regarding some aspects of this institution. Consequently, the national and international tribunals give various decisions, depending on the legal regulations and the international commercial customs that they consider applicable in the case, the jurisprudence in this field being different.


1153-1) provides that "damages due on the ground of delay in satisfaction of a monetary obligation consist of interest at the rate set by legislation, starting from
the time of notice to perform. These damages are due without the creditor having to establish any loss".
Under the German Civil Code (hereinafter -BGB), "if the obligor, following a warning notice from the obligee that is made after performance is due, fails to perform, he is in default as a result of the warning notice" (sec.286). "A person who is liable in damages must restore the position that would exist if the circumstance obliging him to pay damages had not occurred" (sec.249). "The damage to be compensated for, also comprises the lost profits. Those profits are considered lost that in the normal course of events or in the special circumstances, particularly due to the measures and precautions taken, could probably be expected" (sec.252).
In the Vienna Convention of 11 April 1980 on Contracts for the International Sale of Goods [1] (hereinafter -CISG), according to Article 78, if a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under Article 74, which provides that damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Under the CISG, default interest allocation shall not be subject to a prior warning notice; the moment from which the interest starts to flow, in case of non-payment of the price, is the date of payment indicated in the contract.  (1)).
In the practice of international trade, arbitral tribunals consistently award interest for late payment of sums of money due [4]. In international arbitrations, the allocation of default interest as an integral part of damages is generally a longstanding practice [5]. Thus, for example, in the award of a arbitral tribunal under the No. 7331/ 1995 [7]; ICC Award No. 9333/1998 [8].

Rate of interest
Many national legal systems contain legal provisions regarding the interest rate. In France, for example, the interest is charged according to the statutory rate, It has been held in jurisprudence that, in the absence of contractual provisions relating to default interest, it is for the arbitrators to determine in a discretionary manner the susceptible rate, being limited only by international public policy, taking into account all relevant circumstances of the case [12]. It was also stated that this determination is not governed by strict and precise rules. The general tendency that emerges from the doctrine and from the international arbitration practice is to leave to the arbitrator a great freedom in fixing this rate.

Interest on late payment vs. stipulated damages
Normally, the statutory interest on late payment rate is not mandatory and the parties to the contract may provide for agreed interest rates (insofar as they do not contradict the limits established by law for some categories of transactions). In such cases it is the conventional interest. These interests are stipulated in the contractual clauses (clause pénalefr., liquidated damagesengl.), widely used in international commercial contracts. National laws vary considerably with respect to the validity of the type of clauses in question, ranging from their acceptance in the civil law countries, with or without the possibility of judicial review of particularly onerous clauses, to the outright rejection in common law systems of clauses intended specifically to operate as a deterrent against non-performance, i.e. penalty clauses [2, p.339]. In such situations, it is important to establish the correlation between the interest regulated by the provisions referred to above and the stipulated damages (agreed payments for late performance).
In comparative law, the solutions in this regard are different. In France, for example, Article 1231-5 C. civ. provides: where a contract stipulates that the person who fails to perform shall pay a certain sum of money by way of damages, the other party may be awarded neither a higher nor a lower sum.
Nevertheless, a court may, even of its own initiative, moderate or increase the penalty so agreed if it is manifestly excessive or derisory. Consequently, it can be accepted that, in the event that the amount of the penalties is derisory in relation to the actual damage suffered by the creditor, the judge will allocate a default interest that will supplement the amount of conventional penalties.
In Germany, sec.288 para.3 BGB provides that the obligee may demand higher interest on a different legal basis. Consequently, in the presence of a stipulated damages clause, there is nothing to prevent the creditor from charging the conventional interest, when it is higher than the legal one.
In Republic of Moldova, the general rule is that the creditor can request, at his choice, either the statutory interest for delay or the penalty for delay according to the stipulated damages clause, called penal clause (Art. 942 para (4)

Damages in addition to interest
Default interest is intended to fully compensate for the damage suffered due to late payment of a sum of money. However, the delay in payment may lead to a greater damage than that covered by the amount of default interest at the legal rate. Therefore, the legal systems of continental Europe and the instruments of uniform law grant the creditor the right to additional damages, insofar as the default interest at the statutory rate does not compensate for all the actual damage suffered.
In France, Art.1231-6 of the Civil Code (ex 1153-1) provides that where a debtor who is late in performing has by his bad faith caused his creditor a loss independent of this delay, the latter may obtain damages distinct from interest arising from the delay. Also, in Germany the BGB states that the assertion of further

Conclusions
Most legal systems and instruments for the standardization of contract law enshrine the institution of default interest, which is allocated to compensate for the damage resulting from the late performance of contractual obligations. However, despite the trend of approximation of regulations in this area, the laws of different countries contain uneven solutions to some aspects of this area. In particular, matters are regulated differently such as: the duration of the default interest, the delay as a condition for benefiting from the right to the interest in question, the amount of this interest, the correlation between the legal default interests and the penalties provided in stipulated damages clauses. Respectively, the arbitral tribunals give deferred solutions, depending on the legal regulations and the international commercial customs that they consider applicable in this case, the jurisprudence in this field being uneven. The general tendency that emerges from the practice of international arbitration is to leave to the arbitrators a great freedom in solving these problems, being limited only by the international public order and by the general principles of law.
It has been held in international commercial arbitration that the allocation of default interest must take into account the fact that, due to the delay in the performance of the contractual obligation by the debtor, the creditor is deprived for a certain period of time of the amounts to which he was entitled to receive. The amount of interest in question is related to the rate at which the creditor will normally have to borrow money that he has not received from his debtor. The amount of interest must be reasonable and must be determined taking into account all relevant