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CISG CASE PRESENTATION

Colombia 10 May 2000 Constitutional Court [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/000510c7.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISION: 20000510 (10 May 2000)

JURISDICTION: Colombia

TRIBUNAL: Corte Constitucional

JUDGE(S): Dr. Antonio Barrera Carbonell, Magistrado Ponente [President of the Court]

CASE NUMBER/DOCKET NUMBER: Sentencia C-529/00; Referencia: expediente LAT-154

CASE NAME: Not applicable

CASE HISTORY: Not applicable

SELLER'S COUNTRY: Not applicable

BUYER'S COUNTRY: Not applicable

GOODS INVOLVED: Not applicable


UNCITRAL case abstract

COLOMBIA: Constitutional Court 10 May 2000

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/123]

CLOUT abstract no. 1188

Reproduced with permission of UNCITRAL

Abstract prepared by Paulina Smykouskaya

According to the procedure stipulated by the legislation of the Republic of Colombia, the CISG was presented to the Constitutional Court after being approved as law of the country by the Congress [Act 518 of 1999]. For the CISG to be executable in Colombia, the Constitutional Court had to verify that all formalities were observed and confirm constitutionality of the CISG.

After examining the formal aspect of the adoption of the CISG by the national government and approval by the Congress, the Court observed that the necessary requirements were met.

In the course of material revision of the CISG the Court pointed out the importance of the provisions in the Preamble that affirm that the adoption of uniform rules applied to contracts for the international sale of goods entered into between different social, economic and juridical systems, would contribute to the elimination of juridical obstacles which impede international trade and would instead promote its development.

The Court took into consideration that economic integration with other States is a constitutional strategy that should be achieved on the basis of fairness, reciprocity and national convenience. The Court observed that the CISG complied with this purpose as an instrument “to unify the criteria for the international sale of goods in order for it to become more expeditious for parties located in different countries to engage in the commercialization of goods which translates into a better quality of life of the inhabitants of the Nations where they reside”.

The Court found that CISG does not ignore the autonomy of the private consent (Arts. 13, 16, 333 of the Magna Charta; Arts. 16, 1151, 1518, 1524, 1532 of the Civil Code) and does not hinder the freedom of the parties to enter into any agreement, as the parties that conclude the contract can exclude totally or partially the application of the CISG dispositions, tacitly or expressly (Art. 6 CISG).

Equally, the Court found that the CISG respects the principle of good faith (Art. 83 of the Magna Charta; Art. 7 CISG).

Another point considered by the Court dealt with the provisions of the CISG regulating the form of contracts (Arts. 11, 12, 96 CISG). The Court found that Colombia would not have to make a declaration or reservation on the matter, since its commercial legislation does not require that contracts for the sale of goods be necessarily concluded in writing (Art. 824 of the Commerce Code).

The Court ruled that the principles and regulations incorporated in the CISG are consistent with the Colombian Constitution, since they are based on the sovereignty, the respect for the self-determination of nations and the recognition of the principles of international law accepted by Colombia. For these reasons, the Court resolved to declare the CISG and Act 518 of 1999 executable.

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Case abstract

Columbia: Corte Constitucional 10 May 2000

The Constitutional Court of Columbia establishes with this decision that the CISG respects the principles and rules of the Columbian Constitution. In consequence, the Court agreed to declare the CISG's validity within Columbia by declaring Law Number 518 of 1999, which approved the Convention, valid.

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Classification of issues present

APPLICATION OF CISG: Declaration of validity of the CISG within Colombia

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 7

Classification of issues using UNCITRAL classification code numbers:

7A ; 7A3 ; 7C22 [Principles of interpretation: good faith; General principles: Court stated: "[T]he exercise of the commercial activity that individuals develop with citizens of different States must fit the principle of good faith, just as the Conventions stipulates in Article 7(1). This principle should not only be observed in the contractual relationships or negotiations, but in the relationships between individuals and the State and in the procedural performances."]

Descriptors: General principles ; Good faith

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Editorial remarks

EDITOR: Patricia Rincón Martín

The final objective of this decision, held by the highest court of Columbia, is to declare the CISG valid and a part of their Law. It is interesting, however, to examine the process required to do so, for it differs from that followed in other countries.

As the court decision explains, under the Columbia Constitution the President of the Republic of Columbia may take the initiative in having international treaties such as the CISG approved. The treaty must be sent as a bill to the Congress and approved as an regular law (approved by both the Senate and the House of Representatives). Immediately afterwards, the law is sent to the Constitutional Court. This court checks that all formalities required in the Congress were fulfilled and also examines the material content of the international treaty.

In this case, the court confirmed that Law 518 of 1999 was formally correct and that the contents of the CISG respect the principles and provisions of the Columbian Constitution. Consequently, the court declared that both the CISG and the law which approved it were valid.

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=827&step=Abstract>

Spanish: CISG - Spain and Latin America website <http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/rcolo1.htm>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): Gaceta de la Corte Constitucional, Section E-2000; CISG-Spain and Latin America website <http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/scolo1.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=827&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Larry A. Di Matteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at 319 ("The Columbia Constitutional Court enunciated a broad good faith principle by referencing its own Magna Charta: 'Equally, the exercise of the commercial activity that the individuals develop with other citizens of different States must fit the principle of good faith, just as the Convention stipulates in paragraph number one in article 7. This principle should not only be observed in the contractual relationships or negotiations, but in the relationship between individuals and the State and in the procedural performances. Indeed, good faith, in conformity with article 83 of the Magna Charta is presumed. ...'.")

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Case text (English translation)

Queen Mary Case Translation Programme

Constitutional Court 10 May 2000

Translation [*] by Pablo A. Santos Jiménez
Ritch, Heather y Mueller, S.C., Mexico City

Translation edited by Jorge Oviedo Albán
Professor of Commercial Law
Universidad de La Sabana, Bogotá D.C.

Ruling
Reference:
Studied Act:
                  C-529/00
Dossier LAT-154
Act 518 of 1999, by means of which the
United Nations Convention on the
International Sale of Goods, held in
Vienna on 11 April 1980, is approved.
Dissertating Magistrate:
Dr. Antonio Barrera Carbonell

Santa Fe de Bogotá,
10 May 2000.

The entire Constitutional Court, in compliance of their constitutional attributions and the requirements and steps settled down in decree 2067 of 1991, has issued the following:

RULING

I. Background

On 6 August 1999, the Presidency of the Republic [of Colombia] dispatched to this Corporation authenticated copies of Act 518 of 4 August 1999, by means of which the United Nations Convention on Contracts for the International Sale of Goods, held in Vienna on 11 April 1980, is approved, in compliance with the provisions of section 10 of article 241 of the Constitution of Colombia.

The Disserting Magistrate ("DM"), by means of an official communication dated 30 August 1999, started the study of the constitutional adequacy of the law and the referred Convention, and prepared the practice of proofs, the fixation of the matter in list for 10 days with the purpose of allowing civil intervention and ordered the transfer of the matter to the General Attorney of the Nation in order to surrender the concept of their competence.

Once the steps indicated above were accomplished, and in exercise of the competence that is assigned to it by the Constitution, the Court proceeds to issue the corresponding decision.

II. Text of the studied act

It is included, as part of this ruling, authenticated photocopies of Act 518 of 1999 under scrutiny, taken from the copy dispatched by the Juridical Secretary of the Presidency of the Republic.

III. Opinions

      1. Foreign Affairs Ministry

By means of proxy, the Ministry requests the Court to recognize the constitutionality of Act 518 of 1999 that approves the United Nations Convention on Contracts for the International Sale of Goods, and in that sense it contends the following arguments:

Once the previous step was completed, the Executive (the President) presented the Senate, during the 1997 legislature, the Bill for the approval by the Congress of the Convention, which was accepted by means of Act 518 of 4 August 1999.

      2. Ministry of Economic Development

This Ministry, through its official, was allowed to point out on the matter in analysis, the following:

" ...This office does not find reason to formally or constitutionally object to Act 518 of 4 August 1999, by means of which the United Nations Convention on Contracts for the International Sale of Goods, made in Vienna on 11 April 1980, agreement that, besides being adjusted to the pertinent constitutional and legal requirements to the satisfaction of this Office, is of absolute convenience for the constitution of a juridical instrument that contributes, through its application, to the participation of the Republic of Colombia in the international trade environment."

IV. State Attorney's point of view

The Magistrate begins to examine the approbatory act of the Convention holding that, since there is no special procedure to follow, it is to be approved in accordance with the prescriptions usual for the expedition of the ordinary laws, as per articles 157, 158 and 160 of the Constitution.

After an exhaustive examination of the procedure in the Legislative Chambers to which the Act was subjected to, the State Attorney's office concludes that, from a formal point of view, the Statute under consideration does not deserve any comments:

"The mercantile activity between Colombia and the rest of the Nations is carried out by means of contracts for the international sale of goods, therefore it is crucial that the national legislation is harmonized with the usages and tendencies of international law."

After the precise analysis of some of the dispositions of the Convention, in which analysis the importance of the dispositions and the fact that none in particular thwarts our constitutional order, the State-Attorney concludes:

"...The essential aspects of the United Nations Convention on Contracts for the International Sale of Goods, given the justice and convenience thereof, they serve as a foundation to rank this International Instrument as adjusted to the Magna Charta of our country, since they harmonize with the constitutional principle that the international relationships of the Colombian State are to be based upon national sovereignty, in regard to the self-determination of Nations and in the recognition of the principles of international law accepted by Colombia."

V. Considerations and Foundations

      1. Formal revision

In connection with the formal aspect for the adoption of the Convention by the National Government and approval by the Congress of the Republic, the Court observes that the necessary requirements were completed, as derived from the approbatory material that is in the dossier. Indeed:

      1.1. The United Nations Convention on Contracts for the International Sale of Goods is a multilateral treaty open to adhesion by States that did not intervene in its conclusion according to paragraph 3 of article 91 that indicates: "This Convention is open for accession by all States which are not signatory States as from the date it is open for signature (30 September 1981)." Since Colombia did not take part amongst the States that initially subscribed to the Convention, the President of the Republic in order to adhere the Colombian State to this Convention performed the executive approval and he ordered the Minister of Foreign Affairs, doctor Rodrigo Pardo Garcia-Peña, to subject the mentioned Instrument to the consideration of the Congress in order to approve the corresponding Act.

      1.2. Remission of the approbatory law and of the Convention on behalf of the National Government. The Act 518 of 4 August 1999, by means of which the United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on 11 April 1980, was remitted to this Corporation by the Juridical Secretary of the Presidency of the Republic on 6 August 1999, that is to say, within the term of six days that are provided for in paragraph 10 of article 241 of the Constitution, since the law was sanctioned on 4 August 1999.

      1.3. Before the Congress of the Republic. The Bill was presented before the Senate of the Republic and was treated as an ordinary law, since the Constitution does not establish a special procedure for the expedition of approbatory acts of International Agreements. The respective steps were completed in the following manner:

        1.3.1. In the Senate of the Republic. According with the certifications and other documents that are in the file, the Bill was received under number 124 of 1997 in the Senate of the Republic. Doctors María Emma Mejía Vélez and Almabeatriz Rengifo López, then officers of the Ministries for Foreign Affairs and for Justice and Law, respectively, presented this project. The text of the project and the rationales of the act were published in the Congress Gazette number 455 of 31 October 1997. Congress-member Luis Eladio Pérez Bonilla elaborated the report of the first debate in the Second Commission and it was published in the Congress Gazette number 510 of 4 December 1997. Subject to approval in first debate, the Commission approved with 8 votes in favour, with a quorum of eight of the thirteen members, on 16 December 1997, according to certification sent by the General Secretary of 28 September 1999. The report for second debate was surrendered by the same Congressman Pérez Bonilla and published in the Gazette number 11 of 17 March 1998. The project was approved before the entire Senate in the session corresponding to the records 07 of 25 August 1998, published in the Gazette 167 of 31 August 1998. This session had a quorum of ninety senators, according to certification sent by the General Secretary of the Senate (Fl. 232).

       1.3.2. In the Representatives' Chamber. The Project was received in the Representatives' Chamber under number 061/98 and was treated as follows:

       2. Material revision

       2.1. Contents. With the purpose of establishing the consistency of the Convention under analysis with the Constitution, its contents is dismembered highlighting the most important formulations in this Instrument:

       3. Constitutionality of the Convention

        3.2.1. The economic integration with other States is a constitutional strategy that should be achieved on the basis of fairness, reciprocity and national convenience (Article 150-16). In the Convention that is analysed, it is observed that this purpose is indeed complied with when being able to unify the criteria for the international sale of goods in order for it to become more expeditious for parties located in different countries to engage in the commercialisation of goods which will surely translate also into a better quality of life of the inhabitants of the Nations where they reside.

On this aspect the Government expressed in the following rationales presented by its respective ministers before the Congress of the Republic:

"... in developing this type of treaties, commercial exchange is intensified among the parties and it increases, in consequence, the number of business and international juridical acts that the individuals conclude within a certain juridical frame. Experience and international practice led to the conclusion that the regulation of contracts for the international sale of goods was considered as one of those issues that required, with more urgency, a uniform regulation that adapts to the necessities of international trade and that, at the same time, can enjoy a general acceptance on behalf of the different juridical systems that govern the world. The Convention on Contracts for the International Sale of Goods fulfills these requirements. It responds, without doubts, to a necessity felt inside the international economic relationships; the best test of it is the fact that at the end of 1994, forty five (45) States were party to this Convention."

        3.2.2. The Convention does not ignore the autonomy of the private consent, in the measure in that that it does not hinder the right of the freedom that the parties have to enter into any agreement as per articles 13, 16 and 333 of the Magna Charta. In such train of thought, it is allowed that the parties that conclude the contract can exclude totally or partially the application of the dispositions of the Convention, tacitly or expressly in conformity with article 6 of the international Instrument that is analysed.

Indeed, the Constitutional Court has pointed out the following in several rulings:

"The autonomy of the individual consent consists more or less in the widespread recognition of the juridical effects of certain acts or manifestations of will of the individuals. In other words, it consists of the delegation that the legislator makes to individuals of the faculty or power that it has of regulating the social relationships, a delegation that they exercise by means of the conclusion of juridical acts or business. The individuals, freely and according to their best convenience, they are unbound to determine the content, reach, conditions and modalities of their juridical acts. When proceeding to conclude their acts, they should observe the necessary requirements that follow reasons concerning with the protection of their own agents, of third parties and of the general interest of society. (Ref. Ruling T-338 of 1993. DM.: Alejandro Martínez Caballero).

"Inside a juridical system that, as ours, recognizes - although not with an absolute character - the autonomy of private consent, it is the normal case that individuals submit the effects of their juridical acts to the clauses of their mutual agreements, provided that they do not thwart public-policy (imperative) dispositions of the law, commonly well-known as laws of public order." (Ref. Ruling C-367 of 1995. P.M.: José Gregorio Hernández Galindo).

"... private autonomy of consent, although no rule exists in the Constitution that contemplates it specifically, is deduced respectively from articles 13 and 16 (of the Constitution), which consecrate the freedom and free development of the capacity of the individual (Personalidad), which serve as a foundation to affirm that individuals are to be recognized the possibility to behave according to their free will, provided they do not do so against the law and the rights of others. Additionally, a series of constitutional articles warrant certain rights which exercise assumes the autonomy of consent; such is the case of the right of the juridical capacity (personalidad jurídica) (art. 14), the right to associate (art. 38), to enter into marriage contracts (art. 42), and the limits of economic type outlined in article 333."

"In the Colombian Civil Code of 1887, both [(i)] the then prevailing free-will-system (voluntarista) as [(ii)] public order and good customs as limits to the autonomy of the free-will were consecrated; they are proven, amongst others in articles 16, 1151, 1518, 1524 and 1532. Therefore, it can be said, that institution [1] referred, although limited, acquired a preponderant and fundamental place within the system." (Ref. Entire Court. Ruling C-660 of 1996. DM: Carlos Gaviria Díaz).

        3.2.3. Equally, the exercise of the commercial activity that the individuals develop with other citizens of different States must fit the principle of good faith, just as the Convention stipulates in paragraph number one of article 7. This principle should not only be observed in the contractual relationships or negotiations, but in the relationships between individuals and the State and in the procedural performances. Indeed, the Court pointed out:

"Good faith, in conformity with article 83 of the Magna Charta is presumed and this presumption may only be invalidated through the mechanisms consecrated by the enforceable juridical order" (Ref. Ruling C-253 of 1996. DM.: Hernando Herrera Vergara).

"In connection with the topic of obligations and their demonstration during a process, it is not acceptable to affirm that the corresponding policy thwarts article 83 of the Constitution, based upon the general presumption that good faith would be incompatible with its demonstration in court. There is nothing more against reality: in all juridical systems that recognize the principle of good faith, validation is a form of granting security to the life of business and, in general, to all juridical relationships. (Ref. Ruling C-023 of 1998. DM..: Jorge Arango Mejía).

According to the foregoing, the principle of the good faith consecrated in the Convention in article 7(1) "In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade" is according to the postulate of the Magna Charta regarding good faith.

        3.2.4. In order to perform a sales contract under the parameters of the Convention it is not necessary for it to be in writing. Indeed, article 11 of the Convention states: "A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses", but if the State's internal legislation does not allow the conclusion, modification or the extinction for a mutual agreement for the sales contract or the offer, the acceptance or any other intent manifestation to be made otherwise than in writing, the relevant declaration to the mentioned disposition in conformity with article 96 of the Convention must be made which establishes: "A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by writing may at any time make a declaration in accordance with article 12 ..."

Colombia would not have to make a declaration or reservation on the matter, since our commercial legislation does not require that contracts for the sale of goods be carried out necessarily in writing. Indeed, article 824 of the Commerce Code, expresses that merchants will be able to express their intent to hire or to oblige verbally, in writing or by any unequivocal way, except when a legal rule estates that certain solemnities are an essential requirement of the juridical business, in which case, it will not exist while the solemnity is not fulfilled.

        3.2.5. On the other hand, the rules that the Convention contains promote the internationalisation of economic relationships based upon the national sovereignty, in recognition of the self-determination of Nations and in the recognition of the principles of international law..." (Articles 9 and 226 of the Magna Charta). This can be concluded from the Convention, since the contracts of international sale of goods regulated by it facilitate and promote the international trade of Colombia with other countries of the world. Also, the principles and regulations incorporated in this Instrument are adapted to the limits of our Constitution, since they are based in the sovereignty, the respect for the self-determination of Nations and the recognition of the principles of International Law accepted by Colombia.

In this understanding, the Government affirms the following in the rationales elucidation of the approbatory bill of the Convention:

" ... the lack of a uniform law in this matter generates a juridical uncertainty that can never be convenient for the development of international trade. It is here where the true importance of the project that the Government presents today to the consideration of the honourable members of Congress resides. Starting from the moment in which our country approves and complies with the United Nations Convention on Contracts for the International Sale of Goods, [that the uncertainty] will disappear or at least it will substantially decrease the problem generated by the legislative diversity and the need to apply the conflict-of-law rules."

For all the above-mentioned it is held that the contents of the revised Convention fully respect the principles and commands of the Magna Charta. In consequence, their implementation must be declared as well as that of Act 518 of 1999 that approves it.

VI. Decision  

In regards of the above, the entire Constitutional Court, administering Justice on behalf of the People and by command of the Constitution

RESOLVES:
FIRST: To declare the Convention of the United Nations on Contracts for the International Sale of Goods, made in Vienna on 11 April 1980, executable.
SECOND: To declare Act 518 of 4 August 1999, by means of which the Convention referred in number one above is approved, executable.
THIRD: To order that this decision is communicated to the Presidency of the Republic, to the President of the Congress of the Republic and the Ministers Foreign Affairs and of Economic Development, for the purposes contemplated in article 241, number 10 of the Magna Charta.

Be notified, communicated, published, inserted in the gazette of the Constitutional Court and filed.

ALEJANDRO MARTINEZ CABALLERO
President
ANTONIO BARRERA CARBONELL  
Magistrate
ALFREDO BELTRÁN SIERRA
Magistrate
CARLOS GAVIRIA DIAZ
Magistrado
JOSÉ GREGORIO HERNÁNDEZ GALINDO
Magistrate
EDUARDO CIFUENTES MUÑOZ
Magistrate
FABIO MORON DÌAZ
Magistrate
VLADIMIRO NARANJO MESA
Magistrate
ÀLVARO TAFUR GALVIS
Magistrate
MARTHA SACHICA DE MONCALEANO
General Secretary


FOOTNOTES

* All translations should be verified by cross-checking against the original text.

1. Institution: a set of rules of a certain aspect of human life, e.g. the Institution of Marriage.

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Pace Law School Institute of International Commercial Law - Last updated November 26, 2012
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