Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography

CISG CASE PRESENTATION

Germany 30 August 1996 Hamburg Arbitration Proceeding [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/960830g1.html]

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

Case Table of Contents


Case identification

DATE OF DECISIONS: 19960830 (30 August 1996)

JURISDICTION: Arbitration ; Germany

TRIBUNAL: Arbitral Tribunal Hamburg

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: Interim award of 30 August 1996

CASE NAME: Not provided

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany [defendant]

BUYER'S COUNTRY: Australia (Tasmania) [claimant]

GOODS INVOLVED: Unavailable


Classification of issues present

APPLICATION OF CISG: Yes [Parties had chosen law of Germany, a Contracting State]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 6

Classification of issues using UNCITRAL classification code numbers:

6A1 [Implied exclusion: tribunal found no implied exclusion of Convention]

Descriptors: Exclusion of Convention

Go to Case Table of Contents


Editorial remarks

EDITOR: Albert H. Kritzer

The tribunal held that agreeing on "Hamburg Friendly Arbitration" equals agreement on German substantive law, which in this case is the CISG. Dismissing an allegation of applicable trade usages or local usages, the tribunal stated that the parties "have not excluded the [CISG] either expressly or by conclusive behaviour. Their presumable intention leads to application of the CISG . . ." The tribunal also stated that "stricter requirements apply to proof of an agreement to exclude the CISG [under its. Art. 6] than those under Art. 3 . . . ULIS."

Go to Case Table of Contents


Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

German: Rechtsprechung Kaufmännischer Schiedsgerichte (RKS) 6 D 1 No. 68

CITATIONS TO TEXT OF DECISION

Original language (German): Rechtsprechung Kaufmännischer Schiedsgerichte (RKS) 6 D 3 a No. 11 [81-83/13-15]

Translation: (English): XXII Yearbook Commercial Arbitration XXII, 57-59 [text presented below]

CITATIONS TO COMMENTS ON DECISION

Unavailable

Go to Case Table of Contents


Case text (English translation)

Yearbook Comm. Arb'n XXII, Albert Jan van den Berg ed. (Kluwer 1997). Copyright owner: The International Council of Commercial Arbitration. Reproduced with permission of ICCA

Hamburg Arbitration proceedings

Interim award of 30 August 1996

Subject matter: - Hamburg Friendly Arbitration clause determines applicable substantive law
  - German law includes UN Sales Convention 1980

Facts

The Tasmanian claimant and the German defendant concluded a contract providing for Hamburg Friendly Arbitration.

By the interim award summarized here below, the arbitrators found that the UN Sales Convention of 1980 applied to the merits of the dispute because, by agreeing to have their disputes resolved by Hamburg Friendly Arbitration, the parties also agreed on the application of German substantive law, which includes the United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG).

Excerpt

[1] "According to the traditional jurisprudence of the Hamburg arbitral tribunals, the parties, by agreeing on Hamburg Friendly Arbitration, also agree on the application of German substantive law. This agrees with the principle of free choice of law in German private international law, Art. 27 of the Introductory Law to the Civil Code (EGBGB). A choice of law appears with sufficient certainty from the contractual provisions and the circumstances of [page 57] the case (Art. 27(1), second sentence, EGBGB), because the parties have agreed, exactly for the case at issue, on a connecting factor with Germany and have referred the settlement of disputes to arbitrators bound as a rule to the German legal tradition. Where the contractual parties provide for merchants as arbitrators, it is unlikely to expect that these arbitrators will apply a foreign law, unless there is an express agreement thereon and the arbitrators have been chosen with [the application of foreign law] in mind.

[2] "The [CISG] is German law. It is founded on an international agreement, but it is in force in Germany as German law, due to the implementing law of 5 July 1989, since 1 January 1991. It prevails as lex specialis over the provisions of the Civil Code and the Commercial Code as far as the international sale of goods is concerned.

[3] "The parties may exclude the application of the [CISG] or vary its effects, Art. 6. The parties in the present case (the Tasmanian claimant and the German defendant) have not excluded the [CISG] either expressly or by conclusive behavior. Their presumable intention leads to application of the CISG, which is applicable also in the Australian Federal State of Tasmania due to the implementing law of 15 April 1987.

[4] "If contractual parties from different countries have at their disposal a uniform legal basis for their contractual transaction which is valid in both countries, it is arguably to be assumed that they want to have their disputes decided on that basis. The case may be different where the contract or the standard conditions referred to therein refer to the commercial and liability law system of the Civil Code and the Commercial Code, because this is different from the system of the [CISG]. However, no such indication is to be found in the agreement for Hamburg Friendly Arbitration; rather, it is an isolated agreement on an arbitral tribunal and arbitral procedure.

[5] "According to present conceptions, it cannot be assumed anymore, in particular between foreign and non-resident parties, that such an arbitral clause also results in a reference to the further Hamburg trade usages laid down in Sects. 1-19 of the Local Usages. Sect. 20 no. 6 expressly limits prevalence over contractual provisions to `this paragraph'. It is the experience of the merchant arbitrators in this arbitration that the declaration of the contractual partners to such an agreement is only meant to concern the arbitral clause.

[6] "Not the arbitration agreement but, rather, concrete connecting factors, like works in the Hamburg port, would be a ground for the applicability of other trade usages. Also, local usages do not refer to the joint system of Civil Code and Commercial Code but only to a few individual provisions. It is not excluded under Art. 6 [CISG] that these rules be seen as a modification of the [CISG]. Consciously departing from the Hamburg Friendly Arbitration award [page 58] of 11 November 1975 (HSG D 3 a no. 6), this arbitral tribunal holds that application of the [CISG] is not excluded by agreement.

[7] "[The 1995 award], which was rendered under the Convention relating to a Uniform Law on the International Sale of Goods [ULIS], which is no longer in force today, based its exclusion of the Convention, taking into account the whole of the local usages, on the 'German domestic provisions' of the Civil Code and the Commercial Code in connection with local usages. This point of view did not take into consideration the legal developments and cannot be applied to the [CISG] also on formal grounds. Art. 3 ULIS expressly allowed a tacit exclusion of the applicability of the Convention. Such a provision does not appear in Art. 6 [CISG]. Hence, stricter requirements apply to the proof of an agreement to exclude the CISG than those under Art. 3, second sentence, ULIS." [page 59]

Go to Case Table of Contents
Pace Law School Institute of International Commercial Law - Last updated January 25, 2002
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography