The Duty to Mitigate: A Comparative Analysis between the English Common Law and the CISG

This article looks closely at how two systems of law namely the Convention on the International Sale of Goods (CISG) and the common law resolve an important principle of law, in this case the issues of mitigating losses and the awarding of damages once a contract has been breached. The analysis relies on Art 77 of the CISG which deals with mitigation, and the recent High Court decision in Thai Airways International Public Co Ltd v KI Holdings Co Ltd [2015] EWHC 1250 (Comm). The article also briefly traces the problematic application of the CISG in Australia. The purpose of this article is to indicate how mitigation ought to be applied in Australia under the CISG by highlighting the differences between the CISG and the common law.