The court held that the defendants impliedly agreed that the court try the dispute by participating in the litigation process from its commencement.

The buyer claimed that a reasonable excuse occurs if the seller expressly or impliedly waives his right under article 39 CISG, and that an implied waiver may be derived from an agreement of guarantee entered into by the parties.

Thereby the provision provides effective underpinning to the policy, impliedly pursued at various places in the Model Provisions, that all affected interests in the enacting State should be given due regard in tailoring the relief that the Model Provisions make available to foreign proceedings.

While in some cases it might be impliedly understood that the host Government will be responsible to pay such compensation, it might be advisable to include a specific provision in the legislation to that effect, so as to reassure the project company that it would not have to bear additional costs as a result of governmental acts which were not prompted by any failure on its part.