France 2 April 2008 Supreme Court (Telecommunications products case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/080402f1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: Pourvoi no. 04-17726
CASE HISTORY: Earlier instance Aix-en-Provence 1 April 2004
SELLER'S COUNTRY: Hong Kong (defendant)
BUYER'S COUNTRY: France (plaintiff)
GOODS INVOLVED: Telecommunications products
FRANCE: Court of Cassation, First Civil Division (Telecommunications products case) 2 April 2008
Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/104],
CLOUT abstract no. 1030
Reproduced with permission of UNCITRAL
Abstract prepared by Claude Witz and Mathieu Richard
A French company had bought some telephone products from a company based in Hong Kong. The products were faulty and, in accordance with what had been agreed between the parties, were returned to the manufacturer. The seller failed to carry out the agreed repairs and the buyer therefore issued a writ against it for indemnity for loss.
The Aix-en-Provence Appeal Court awarded the buyer only part of the damages and interest that it had sought, basing its ruling on the law applicable in Hong Kong. The buyer lodged an appeal, on the grounds that the Appeal Court had not applied CISG.
The Court of Cassation rejected that argument on the basis of CISG, article 93, which allowed any Contracting State to apply the Convention to one or more of its territorial units in which different systems of law were applicable, in relation to the matters dealt with in the Convention, by means of a declaration to the Secretary-General of the United Nations expressly stating the territorial units to which it extended. The Court of Cassation found support, among the documents submitted, in a note from the French Minister for Foreign and European Affairs, who had asked the Chinese authorities about the issue of the applicability of CISG to Hong Kong. The note showed that CISG did not feature in the declaration made to the Secretary-General of the United Nations on 20 June 1997 by the People's Republic of China, where it set out which of the conventions to which it was party at that date should apply to the territory of Hong Kong. Since CISG had not applied to Hong Kong before its return to China by the United Kingdom and since China had made a declaration to the depositary of CISG of the kind required under CISG, article 93, the Court of Cassation deemed that the Appeal Court had been legally justified in declining to apply CISG.Go to Case Table of Contents
APPLICATION OF CISG: No
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
93A [Declarations concerning Convention's application to territorial units]
93A [Declarations concerning Convention's application to territorial units]
CITATIONS TO OTHER ABSTRACTS OF DECISION
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1304&step=Abstract>
CITATIONS TO TEXT OF DECISION
Original language (French): CISG-France database <http://www.cisg-france.org/decisions/020408v.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1304&step=FullText>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
French: M. Tilche, in: Bulletin des Transports de la Logistique, No. 3220/2008, pp. 262-3Go to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
Case No. 04-17726 [appeal on a point of law] dated 2 April 2008
Translation [*] by Nathalie Hofmann [**]
REPUBLIC OF FRANCE
In the name of the French People
The Supreme Court, 1st Civil Chamber, has rendered the following decision.
The French Company L... [Buyer] ordered telecommunication products from Company C... M... Ltd [Seller] of Hong Kong. After discovering that the delivered equipment did not work, the parties agreed that it should be sent back to the [Seller] and then returned to the [Buyer] with the [Buyer] bearing 30 % of the FOB price until the repairs had taken place. Since [Seller] has not carried out the agreed repairs, [Buyer] sued for damages.
II. [Proceedings before the Court of Appeal (Aix-en-Provence, 1 April 2004)]
The Court of Appeal awarded damages to [Buyer] limited to US $7,995 according to the law of
Hong Kong and rejected all other claims. [Buyer] appeals to the Supreme Court.
III. [Appeal before the Supreme Court]
On the first ground of appeal concerning the first two submissions:
A [Arguments put forward by the Buyer]
Buyer alleges that:
1. The Vienna Convention on the International Sale of Goods of 11 April 1980 (hereinafter
CISG or the Convention ) applies to the territory of Hong Kong, which is only a special
administrative region under the sovereignty of the Republic of China without any autonomy
under public international law. Besides, the Republic of China has not declared any reservation
or restriction concerning the application of this international convention to the territory of this
internal region since the retrocession of Hong Kong on 1 July 1997. In deciding that the CISG
did not apply to Hong Kong on the sole ground that it is a special administrative region, the
Court of Appeal violated the principles of international law, i.e., both the Vienna Convention
of 23 May 1969 on the Law of Treaties and the CISG.
2. An international convention is applicable according to the indications of the relevant international instruments. In ruling that the [Buyer] would have to prove the applicability of the CISG only because of a Certificat de Coutume [*] produced by the [Seller] wherefrom resulted a ruling that the CISG was not applicable to Hong Kong even though the Convention required the French judge to apply it, given that the [Buyer] expressly demanded its application in its main submission and given that the telephone sets were produced in Hong Kong for a French retailer, the appealed decision violated articles 1 et seq. CISG.
B [Ruling of the Supreme Court]
According to Art. 93 CISG, any Contracting State in which different systems of law are applicable in relation to the matters dealt with in the Convention may declare that the Convention is to extend only to one or more of its territorial units by way of notification to the Secretary General of the United Nations stating expressly the territorial units to which the Convention extends. From the documents supplied during the pleadings and notably from the note of the Minister of Foreign and European Affairs of 18 January 2008, who questioned the Chinese authorities on this point, results that the People's Republic of China deposited with the Secretary General of the United Nations a declaration announcing the conventions to which China was a party at that date which should apply to Hong Kong. The CISG did not figure on that list, nor had the CISG applied to Hong Kong before the retrocession of this territory to the People's Republic of China by the United Kingdom. Thereby, the People's Republic of China has effectuated with the depositary of the Convention a formality equivalent to what is provided for in Art. 93 CISG. Consequently, the CISG is not applicable to the special administrative region of Hong Kong. For this reason, the decision of the Court of Appeal is legally justified.
On the first ground of appeal concerning the last three submissions attached hereafter:
The complaints are not of a nature to permit the admission of the appeal.
FOR THESE REASONS:
|-||DISMISSES the appeal;|
|-||Orders the [Buyer] to pay the court fees; and|
|-||Rejects the claims based on Art. 700 of the new Code of Civil Procedure.|
So held and decided by the Supreme Court, 1st Civil Chamber, and pronounced by the president at the public hearing of the second of April two thousand and eight.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Company L... of France is referred to as [Buyer] and Company C... M... Ltd of Hong Kong is referred to as [Seller].
Definition of terms: Certificat de Coutume = Statement of a foreign lawyer concerning the existence, the content or the interpretation of foreign law. If before a court, a foreign law has to be applied according to conflict-of-law rules, the pleader can submit such a certificate to the French judge. The French judge verifies the sense and content of the foreign law autonomously.
** Nathalie Hofmann is a law student at Humboldt University Berlin studying at the University of Geneva in the "Certificat du droit transnational" program during the academic year 2007-2008 and a member of the Geneva team at the 15th Willem C. Vis International Commercial Arbitration Moot.Go to Case Table of Contents