CISG CASE PRESENTATION

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:

• The Convention under scrutiny constitutes one instrument amongst many that the Government [of Colombia] has entered into in the multilateral environment in order to modernize the usages and tendencies of private international law.

• The sales contract is regulated in [the] Civil and Commerce Codes [of Colombia], even if, for the application of the Convention, neither the civil nor commercial character of the contract is to be considered.

• The contract for the international sale of goods is concluded when negotiations take place between parties whose places of business are in different countries, a situation that would generate uncertainties because of the lack of a uniform law and which today is possible to overcome with the Convention of 1980.

• The Convention is structured on the basis of respecting the national sovereignty, the equality of rights and mutual benefit, which agrees with the principles derived from article 9 of the Constitution that founds the foreign affairs of the Country upon national sovereignty, in the respect of self-determination of the Nations and in the recognition of the principles of international law accepted by Colombia.

• In the same manner, the Convention keeps harmony with articles 150-16 and 227 of the Magna Charta that authorises the State to promote the economic, social integration and politics with other Nations by means of the celebration of Treaties that are carried out on the basis of fairness, equity and reciprocity.

• It should be kept in mind that the Convention allows parties to exclude, totally or partially the application of its dispositions, when the Contracting States party to it have established it by means of a reservation (Reserva).

• The Convention was subscribed in Vienna on 11 April 1980 and the President of the Republic gave the instrument executive approval on 28 December 1995, subject to the approval of the National Congress.

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.

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

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:

• The report of the first debate was presented by Representative José Walteros Lenis Porras and published in the Gazette number 243 of 29 October 1998.

• The Second Commission gave its unanimous approval to the project in session of 11 November 1998, with the attendance of seventeen Representatives, according to certification of the General Secretary of this Commission dated 9 September 1999 (Fl. 35).

• The report of the second debate was presented by the same Representative Lenis Porras on 25 November 1998 and published in the Congress Gazette number 54 of 21 April 1999.

• The project was approved unanimously by the Entire Chamber on 15 June 1999 with a quorum of 107 votes, according to certification sent by the General Secretary of this organism on 14 September 1999.

• The Convention consists of a preamble, 101 articles distributed in four parts, which are divided into chapters and sections. In the preamble, the important point of the Convention is when it affirms that the adoption of these uniform rules applied to the contracts for international sale of goods entered into between different social, economic and juridical systems, would contribute to the suppression of juridical obstacles which impede international trade stops and it would instead promote its development.

• The First Part (articles 1 to 13) contains two chapters respectively, which regulate the Sphere of Application and General Provisions. In the first chapter it is laid down that the Convention will be applied to contracts for the sale of goods between parties that have establishments in different States, and that it will not take into consideration either the nationality or the civil or commercial character of the parties or of the contract. It clarifies that the Convention only regulates the formation of the sale contract and the rights and obligations of the seller and the buyer that arise out of the contract, notwithstanding that the parties can exclude the application of the present Convention. In the second Chapter, some general measures settle down essentially the matters of interpretation of the Convention, which should be observed by the contracting parties. It is important to point out in this chapter that the contract need not be concluded nor evidenced in writing; therefore, any means of proof is conclusive. That general rule has its exception and it is when the internal legislation of a State does not allow it. In such case that disposition will not be applied, provided that the respective reservation (reserva) is made as established in article 96 of this Convention.

• The Second Part consists of ten articles that regulate the formation of the contract, from the offer until the conclusion thereof.

• The Third Part is distributed in five chapters that govern the seller's and the buyer's obligations, the transmission of risk and a description of the seller's and the buyer's obligations, which are defined in twelve sections.

• The Fourth Part contemplates the final dispositions. Among other clauses, it is affirmed that instruments of ratification, acceptance, approval and adhesion to the Convention will be deposited before the General Secretary of the United Nations. Equally, the possibility is settled of making declarations or reservations, notwithstanding that after being ratified the Convention can be denounced by means of a formal notification made to the recipient in writing.

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."

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).

"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.

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.

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

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

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.