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CISG
number


LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

G. Report of the First Committee
[Outline of committee proceedings]
Document A/CONF.97/11 [Original: English 7 April 1980]

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6
Article 5 [became CISG article 6 ]

A. UNCITRAL text [1978 draft]
B. Amendments
C. Proceedings in the First Committee
D. Subsequent proceedings
E. Overview comments

A. UNCITRAL text

1. The text [of the 1978 draft ] of the United Nations Commission on International Trade Law provided as follows:

"Article 5 [became CISG article 6 ]

"The parties may exclude the application of this Convention or, subject to article 11 [became CISG article 12 ], derogate from or vary the effect of any of its provisions."

[Go to Secretariat Commentary on the above text]

[See also pre-Conference observations and proposals by Governments and International Organizations]

B. Amendments

2. Amendments were submitted to article 5 [became CISG article 6 ] by the United Kingdom (A/CONF.97/C.1/L.8), Canada (A/CONF.97/C.1/L.10), India (A/CONF.97/C.1/L.30), German Democratic Republic (A/CONF.97/C.1/L.32), Belgium (A/CONF.97/C.1/L.41), Pakistan (A/CONF.97/C.1/L.45) and Italy (A/CONF.97/C.1/L.58).

3. These amendments were to the following effect:

(i) United Kingdom (A/CONF.97/C.1/L.8):

Add the following sentence to article 5 [became CISG article 6 ]:

"Such exclusion, derogation or variation may be express or implied."

[Rejected: see Consideration 6 below.]

(ii) Canada (A/CONF.97/C.1/L.10):

Revise article 5 [became CISG article 6 ] to read as follows:

"(1) The parties may exclude the application of this Convention or, subject to article 11 [became CISG article 12 ], derogate from or vary the effect of any of its provisions. However, except where the parties have wholly excluded this Convention, the obligations of good faith, diligence and reasonable care prescribed by this Convention may not be excluded by agreement, but the parties may by agreement determine the standards by which the performance of such obligations are to be measured if such standards are not manifestly unreasonable.

"(2) A provision in the contract that the contract shall be governed by the law of the particular State shall be deemed sufficient to exclude the application of this Convention even where the law of that State incorporates the provisions of the Convention."

[Rejected as orally amended: see Consideration, 5 and 6, below.]

(iii) India (A/CONF.97/C.1/L.30):

Revise the article to read as follows:

"Subject to article 11 [became CISG article 12 ], the parties may exclude the application of this Convention or derogate from or vary the effect of any of its provisions."

[Referred to Drafting Committee: see Consideration, 5, below.]

(iv) German Democratic Republic (A/CONF.97/C.1/L.32):

Article 5 should be amended as follows:

"Even if this Convention is not applicable in accordance with articles 2 [became CISG article 2 ] or 3 [became CISG article 3 ], it shall apply if it has been validly chosen by the parties."

[Rejected as orally amended: see Consideration, 6, below.]

(v) Belgium (A/CONF.97/C.2/L.41):

Add a new paragraph (2):

"Such exclusion, derogation or variation must be express or derive with certainty from the circumstances of the case."

Add a new paragraph (3):

"The application of this Convention shall be excluded if the parties have stated that their contract is subject to a specific national law."

[Rejected: see Consideration, 6, below.]

(vi) Pakistan (A/CONF.97/C.1/L.45):

The word "expressly" may be added after the words "the parties may".

[Rejected: see Consideration, 6, below.]

(vii) Italy (A/CONF.97/C.1/L.58):

Add a new paragraph (2) to article 5 [became CISG article 6 ] to read as follows:

"(2) The Convention may only be excluded in its entirety where the parties have expressly so agreed or where they have chosen the law of a non-contracting State to govern their contract."

[Rejected as orally amended: see Consideration, 8, below.]

C. Proceedings in the First Committee

(i) Meetings

4. The First Committee considered article 5 [became CISG article 6 ] at its [3rd meeting and 4th meeting] on 12 and 13 March 1980 respectively [see also 35th meeting of First Committee].

(ii) Consideration

5. At the 3rd meeting, the amendment by India (A/CONF.97/C.1/L.30) was referred to the Drafting Committee. The first paragraph of the amendment by Canada (A/CONF.97/C.1/L.10) was orally amended by the deletion of the words "by agreement, but the parties may by agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable" and rejected by a vote of 4 in favour, and a greater number against.

6. At the 4th meeting, the amendment by the United Kingdom (A/CONF.97/C.1/L.8) was rejected by a vote of 12 in favour and 19 against; the second paragraph of the amendment by Canada (A/CONF.97/C.1/L.10) was rejected by a vote of 3 in favour, and a greater number against; the amendment by Belgium (A/CONF.97/C.1/L.41) to add a new paragraph (2) was rejected by a vote of 8 in favour, and a greater number against; and the amendment by Pakistan (A/CONF.97/C.1/L.45) was rejected by a vote of 4 in favour, and a greater number against. The amendment by the German Democratic Republic (A/CONF.97/C.1/L.32) as orally amended by the substitution for "2" of "2(b)-2(f)" was rejected by a vote of 9 in favour and 21 against. The amendment by Belgium (A/CONF.97/C.1/L.41) to add a new paragraph (3) was withdrawn.

7. At the 4th meeting, the amendment by Italy (A/CONF.97/C.1/L.58) was orally amended to read as follows:

"Even if this Convention is not applicable in accordance with article 2 [became CISG article 2 ], sub-paragraphs (b), (c), (d), (e) or (f), or with article 3 [became CISG article 3 ], it shall apply if it has been validly chosen by the parties, to the extent that it does not affect the application of any mandatory provisions of law which would have been applicable if the parties had not chosen this Convention."

8. It was rejected, and the UNCITRAL text adopted subject to the reference to the Drafting Committee of the amendment by India (A/CONF.97/C.1/L.30).

[D. Subsequent Proceedings]

[The Second Committee at its 1st meeting and 2d meeting considered but did not adopt a proposed "opt-in" amendment. For subsequent Conference material on the development/approval of the final text of CISG article 6, go to Plenary Conference 6th meeting (continued)]

[E. Overview Comments]

[English translation of report on the significance of the deliberations on this article at the Diplomatic Conference: prepared by Peter Schlechtriem, based on notes taken at the conference and published shortly thereafter]

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Pace Law School Institute ofInternational Commercial Law - Last updated September 8, 2000
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