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Excerpt from Camilla Baasch Andersen, Francesco Mazzotta & Bruno Zeller, A Practioner's Guide to the CISG, Juris Publishing (May 2010) 850 p. Reproduced with permission of the publisher. Go to <http://www.jurispub.com/417/a-practitioners-guide-to-cisg> to order this helpful text.

Introduction

The Nature of CISG Case Law: The Key to Uniformity
and Many Persuasive Examples for Counsel to Draw from

Over recent years, much has been written on the goal of uniformity regarding the CISG and the need to interpret it consistently. One suggested avenue for this has been the use of a so-called "global jurisconsultorium."[1] This concept describes the sharing of scholarly sources as well as case law among all CISG states, requiring judges and arbitrators to look at what others have done in different states in similar situations. In other words, global jurisconsultorium requires the sources of trade law in dispute resolution to be as diverse and international as the global financial markets on which transnational commerce takes place.

In essence, the basis of global jurisconsultorium is found in Article 7(1), with the same words that underscore the goal of uniform application, namely that in interpreting the Convention regard must be given to its "international character" and the "need to promote uniformity."[2] In 1984, after the CISG had been drawn up but before its entry into force in 1989, Gyula Eörsi, the President of the Diplomatic conference at which the CISG was adopted, faced the problems which Article 7 would raise, and stated:

"It could be argued that the provisions of Article 7(1) are but pious wishes: the paragraph is necessarily vague and therefore open to surprising results the elements of regard to the international character of the Convention and uniformity in its application were well chosen. The first, as we have seen, was devised to check the homeward trend, and the second is an admonition to follow precedents on the international plane."[3]

Article 7 was, from the onset, meant to form the basis for the extension of a jurisconsultorium to the judges, arbitrators, and counsel -- for decisions to be of precedential value throughout CISG States. It aimed to avoid domestic interpretations of international law, and to create a truly global arena for international sales law. Scholarly debate has highlighted the problems associated with this, and it would seem that in our day and age (with the internet and available case translations solving the practical problems of availability and comprehension) the main difficulty is the mindset of judges who are reluctant to rely on foreign law in resolving the disputes that come before them. With more and more cases applying a truly uniform approach, however, the notion of international law to support international trade seems to be winning a slow battle.

What does this mean for the legal counsel and practitioner? In brief, as practitioners in commercial law supporting the activity of clients engaged in international trade, legal counsel now have an obligation to support their clients by finding and reporting cases from a variety of jurisdictions. This is both good news, and bad news.

The good news is that this gives an extra dimension to the opportunities which can be found in persuasive sources; with additional places to "shop" for material which may support a client's position there may be better cases and/or scholarship to be found for a particular point.

The bad news, of course, is that this is more difficult than to carry out purely domestic-law research. Additionally, failure to consider foreign case law might give rise to professional responsibility issues. The negative aspects of this bad news are, however, not just mitigated by the reasonable increase in billable hours but also by the fact that transnational research is becoming more accessible. The book you hold is one example, collecting cases from multiple jurisdictions, written by three scholars who represent six different countries.[4] Another immeasurable instrument in this context is the Internet and the online-databases of the CISG found here. The most significant example is the CISGW3 database at Pace,[5] to which the authors are immensely indebted. Without the work of collecting the material through a network of national reporters, and ensuring its translation into English through case translation programmes, the legal research required to comply with the global jurisconsultorium would make it impossible in practice.

But another problem facing the counsel who wishes to cite foreign cases, and the judges willing to comply with the duty of the global jurisconsultorium, is the question of how to weigh foreign case law when citing it. The following will address this issue.

Weighing foreign case law [6]

It is worth noting that this Preface, and indeed this book, refers to CISG case law and not to CISG precedents. The reason for this is simple: when faced with persuasive case law from another jurisdiction, a judge may choose to be persuaded to follow a certain line of reasoning. If asked to weigh a foreign case on a carefully balanced scale of precedent, however, the same judge may balk at the concept. The practical implications are exactly the same: asking a judge to consider a case which supports your client. But the effect can be radically different, due mainly to the fact that notions of precedent are domestic, rigid and do not accommodate the notion of looking to foreign law.

There are situations where the judges have openly followed foreign case law, and explained how they are persuaded by facts, reasoning, and outcomes.[7] These judges are trailblazers - they adopt the right attitude in not minding where a sensible commercial law case was decided.[8] It should not matter if the case was decided in Denmark, China, Switzerland or the United States. A good commercial law case is a good commercial law case.[9] Similarly, it should not matter if a soundly reasoned case is from the German Supreme Court or from the lower district court -- if it provides sound reasoning and can act as a persuasive source, cite it, as long as it has not been overturned in a higher instance.

Much has been written on the nature of CISG precedents; and there is, of course, logic in placing supreme court cases above district court cases, when using them in foreign courts. But it should be advocated that when taking these cases out of their domestic context, they have no real value on a precedential scale in any event, so it will be the commercial reasoning which speaks for itself, regardless of the status of the judge.

In brief, it should be recommended that you do not weigh foreign precedents. It is true that domestic decisions have a place in a complex hierarchy of decisions in a domestic context. But the case is removed from this context if cited as an international source. If the decision has been allowed to stand (i.e. has not been overturned) and if it seems to make sense and supports a clients position, then why would a judge not consider it?

Unfortunately, according to some American commentators, there are several reasons why American courts do not bother with looking beyond U.S. cases. Some have suggested that the heavy docket in American courts inhibits them from considering foreign case law, especially if reliance on domestic law results in an outcome compatible with the CISG.[10] Others seem to suggest American courts suffer from some sort of superiority complex and, assuming they rely on foreign case law, they distinguish between trusted and untrusted jurisdictions, not based on the reasoning.[11]

The approach taken by some American courts, then, is a display of unwarranted domestic-law bias. We hope the new generations of lawyers and judges are more open to the "global jurisconsultorium" advocated in this book.


FOOTNOTES

1. See, generally, Camilla Baasch Andersen, Uniform Application of the International Sales Law. Understanding Uniformity, the Global Jurisconsultorium and Examination and Notification Provisions (Kluwer 2007); Camilla Baasch Andersen, The Uniform International Sales Law and the Global Jurisconsultorium, in Journal of Law & Commerce Vol. 24 Issue 2 (2005) p. 159-179; Francesco G. Mazzotta, Why do some American courts fail to get it right?, 3.1 Loyola University Chicago International Law Review 85 (2005). See also Ferrari, Have the Dragons of Uniform Law been Tamed?, in Sharing International Commercial Law across National Boundaries, Andersen & Schroeter, eds. (2008), p. 134-167.

2. Art. 7 CISG.

3. Gyula Eörsi, General Provisions, in International Sales: The United Nations Convention on Contracts for the International Sale of Goods, Galston & Smit eds. (1984), at 2-4.

4. All three authors have multi-jurisdictional training combining common law and civil law backgrounds. Dr. Camilla Baasch Andersen was initially trained in Denmark and is working as a legal academic in the UK. Francesco G. Mazzotta was initially trained in Italy and is working in the judicial sector in the U.S.A. Dr. Bruno Zeller was initially trained in Switzerland and is working as a legal academic in Australia.

5. See <http://cisgw3.law.pace.edu>. The database is hosted by the Institute of International Commercial Law at Pace University, New York.

6. See also Joseph Lookofsky, Digesting CISG foreign case law: How Much Regard Should we Have? 8 Vindobona Journal of International Commercial Law and Arbitration (2004) 181-195.

7. Most recently OLG Stuttgart from 31 March 2008, available at: <http://cisgw3.law.pace.edu/cases/080331g1.html>. See infra Commentary on Article 7; Andersen, The Uniform International Sales Law and the Global Jurisconsultorium, in Journal of Law & Commerce Vol. 24 Issue 2 (2005) p. 159-179, supra note 1.

8. See for example the often commended Italian case Tribunale Civile di Vigevano 12 July 2000, available at <http://cisgw3.law.pace.edu/cases/000712i3.html>. Comment by Ferrari, Tribunale di Vigevano: Specific Aspects of the CISG Uniformly Dealt With, in 20 Journal of Law and Commerce (Spring 2001) 225-239; Ferrari, Truly Uniform Application of CISG: Tribunale de Vigevano (Italy), 12 July 2000, in Uniform Law Review (2001-1) 203-215; Francesco G. Mazzotta, The International Character of the United Nations Convention on Contracts for the International Sale of Goods: An Italian Case Example, 15.2 Pace International Law Review 437 (2003).

9. See Francesco G. Mazzotta, supra, note 1. See also See Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene, Virginia Maurer, and Marisa Pagnattaro, The Interpretive Turn in International Sales Law: An Analysis of Fifteen Years of CISG Jurisprudence, 24 NW. J. INT'L L. & BUS. 299, 304 (2004).

10. VED P. NANDA & DAVID K. PANSIUS, 2 LITIGATION OF INTERNATIONAL DISPUTES IN U.S. COURTS 12:34 (2005) (text accompanying note 16).

11. CLAYTON P. GILLETTE & STEVEN D. WALT, SALES LAW - DOMESTIC AND INTERNATIONAL 6 (2002).


©Pace Law School Institute of International Commercial Law - Last updated April 16, 2010
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