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Reproduced with permission of Camilla B. Andersen & Ulrich G. Schroeter eds., Sharing International Commercial Law across National Boundaries: Festschrift for Albert H. Kritzer on the Occasion of his Eightieth Birthday, Wildy, Simmonds & Hill Publishing (2008) 13-33

General Principles of the CISG -- Generally Impenetrable?

Camilla Baasch Andersen [*]

INTRODUCTION

One of the most well known developments in the area of international commercial law is the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG), which many chapters in this book focus on. The reason for this focus is, of course, that the great man whom this Festschrift honors -- Albert H Kritzer, also my "other" father -- is a pioneer of the understanding, sharing and scholarship of the CISG, who has dedicated the latter part of his life to promoting its understanding and its uniform application.

This submission will attempt to analyze one of the most elusive topics of the CISG, namely the nature of the general principles upon which the CISG is based. The reason for the choice of this topic is two-fold.

Firstly, aside from hugs and sharing, there are few things in life which Albert appreciates as much as scholarship which tries to face difficult challenges. And the topic of general principles and the gaps they fill is a frighteningly difficult topic to scale -- to use a mountaineering metaphor, this is the K2 mountain of CISG scholarship: [1] In the introduction to the most recent [page 13] edition of the Schlechtriem & Schwenzer Commentary,[2] Professor Schlechtriem referred to the topic of general principles as the most worrying and difficult issues of the CISG. I will certainly agree with this position.

But secondly -- and perhaps more importantly -- this specific topic has always been inexorably tied to Albert in my mind. In 1989 Albert Kritzer was the first CISG commentator to dare to attempt a comprehensive categorisation of the nature of "general principles",[3] and for many years I would refer all students seeking to understand this slippery subject to a very good chapter in a very old book; simply because no one had improved his accessible analysis and grasp of the subject in such a succinct way -- it is not surprising that, even now, Albert's book is considered one of the leading CISG commentaries.[4] At the time of writing, however -- as 2008 begins -- the subject of general principles has been expertly visited by others and in great depth.[5] [page 14] With scholarship and case law on the CISG as proliferate and available as it is (largely thanks to Albert's database), there are more texts, cases and material available. Hence, equipped with road signs, ropes, hooks, and an oxygen supply for the climb (in the form of the CISGW3 database), I dare attempt a few steps in my adopted father's metaphorical climbing shoes. But there is a limit to my confidence in this climb -- I will not scale the pinnacles or peaks of this mountain, but merely try to get to "base camp" in outlining the problem of the general principles, and how we may strive to understand them.

GAP FILLING AND THE ILLUSION OF GENERAL PRINCIPLES

The foothills and initial rocky slopes of general principles cannot be appreciated without a solid understanding of their environment and landscape, namely "gap-filling" and Article 7(2) CISG.[6]

The CISG as a whole encompasses numerous aspects of contracting and sales law in its first three parts.[7] Its 13-year genesis is by far the most thorough example of diplomatic drafting in multi-jurisdictional private law ever [page 15] evidenced.[8] But -- as even the most stone-faced corporate negotiation lawyer must grudgingly admit -- it is impossible to think of everything.

There are still areas that -- although within the application of the CISG -- are not provided for within its provisions. In anticipation of this, the interpretational rules of the CISG contain guidelines for that which is not explicitly provided for, but still within the scope of the Convention. This interpretational challenge is referred to as "gap-filling", because it fills the gaps left in the CISG where it is meant to apply but does not contain a specific solution.

When faced with an issue, which is within the sphere of the CISG's substantive application, but not regulated in full by any CISG provision, the Convention itself prompts us to use Article 7(2) CISG which provides:

"Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law."

The clear wording "in the absence of such principles" makes it abundantly clear that general principles must be consulted first in any gap-filling situation. The first resort in a gap-filling situation is thus to resolve the interpretational challenge in accordance with the spirit of the Convention. The second is to turn to otherwise applicable law.

In other words, general principles must be used first -- and otherwise applicable law is a "last resort"[9] -- in theory, at least. However, as pointed out with ruthless perception by Mazzotta in one area of the CISG,[10] this may be of great significance to scholars, but the reality is that those who apply the [page 16] CISG (the judges, and arbitrators, who can be said to be the ones who now "own" the CISG as they determine its use) do not do this. Otherwise applicable law is -- with very few exceptions -- always the primary recourse if a solution to a problem is not found clearly in a CISG provision. And why? Because using the general principles is just too difficult and filled with insurmountable issues, for reasons explained below.

They thus remain an illusion -- a merely textual nod to transnational cooperation in understanding a certain unified interpretational approach. Without being understood and applied by those who use the Convention, they serve no purpose other than to make the text of Article 7 CISG seem friendly and deceptively potentially uniform. Harsh, perhaps, but true. At this point in the evolution of CISG case law, certain trends and methods of interpretation and application are emerging.[11] A wide-spread understanding of general principles as a means of filling gaps is -- however -- most certainly not.

And so the question is: What is the problem? Why is this seemingly friendly and innocent notion so impossible to translate to practical application?

THE PROBLEMS OF GENERAL PRINCIPLES IN A NUTSHELL

General principles are seemingly vital to a uniform application,[12] being the [page 17] first point of recourse in solving any "gap" in the CISG,[13] but are often overlooked or perceived differently.

There are two basic problems with the general principles, which combine to make them so elusive in CISG theory and -- more importantly -- practice.

  1. The nature of the "gaps" which they are intended to fill is almost as difficult to ascertain as the principles themselves, making it almost impossible to determine with certainty when they become relevant; and

  2. The principles are not defined, explained or clarified anywhere in the CISG, rendering them elusive and uncertain, and -- mildly put -- unattractive to judges, arbitrators and practitioners.

These problems are separate, albeit related, and combine to make the general principles as impenetrable as they are today. If the general principles are ever to have any significance, we must strive to analyse why these problems exist so we can attempt to find solutions. The following seeks to analyse these two issues as outlined above.

WHAT IS A GAP?

As mentioned above, Article 7(2) CISG sets out two separate and ranked solutions for solving issues, which are considered "gaps" in the convention. So in order for general principles to become relevant in application, the issue has to be an internal "gap" -- or lacunae intra legem -- and not merely an issue outside the scope of the CISG (also known as an external gap, or lacunae praeter legem.)[14] If it were the latter, then otherwise applicable law would apply by virtue of PIL rules outside the application of the CISG. So the question [page 18] "when are general principles relevant?' is closely tied to the question "when is something an internal "gap" and when is it simply not within the ambit of the convention and permits a direct recourse to otherwise applicable law?"

Attempting a Linguistic Definition of "Gap"

The current analysis has, up to this point, interchangeably used expressions such as "ambit" "scope" and "sphere" of the CISG to indicate an issue which should be solved by the CISG and is therefore an internal "gap" if a clear solution is not found. The correct wording for this, as found in Article 7(2) CISG is "governed by the Convention" without being "expressly settled". The term "gap" is not to be found anywhere in the Convention text, and a definition of what it can be is not easily found in the terms used by Article 7(2) CISG.

We can set a spectrum on a sliding scale of definitions to define "gaps" as understood by the above words from Article 7(2) CISG, with two extremes at either end.

At one (extreme) end, consider the very limited definition: "governed" means encompassed directly by a problem-solving aspect of a provision of the CISG, and if a solution to a detail is left out of the provision -- and is not found elsewhere -- then it is not governed by the CISG. This leaves little -- if any -- room for any gaps, and invalidates Article 7(2) CISG somewhat, but gives us a starting point for narrowing a closer definition.

At the other (extreme) end, we can define a "gap" as anything unresolved in the CISG which relates to the area of law which the CISG governs (i.e. a contract for the international sale of goods as per Article 1 CISG) which is not excluded from the Convention by way of Chapter I (Articles 1-5 CISG), or by agreement between the parties (Article 6 CISG) or trade usage (Article 9 CISG). Such a definition, however, would leave too much room for gap filling via general principles and empowers Article 7(2) CISG excessively,[15] especially when keeping in mind that the influence of any non-specific principles in law as such are embraced very differently across the national laws [page 19] of member states and many legal systems are not comfortable with elastic or general judicial notions.[16]

It must be somewhere between these two extremes that a definition of a "gap" should be found. Something more than not excluded from the CISG, and something less than explicitly solved by a provision. Anthony McMahon offers a seemingly sensible proposal for aiding the definition of "governed" by adding what he terms a "substance-procedure dichotomy"[17] -- an assessment of whether a given issue is procedural or substantive.

And this is where the real trouble begins, because such a determination is inherently tied to domestic classifications and idiosyncratic legal cultures. If we assume for a moment -- indulging the fantasies of an ivory-tower dweller -- that it were possible to analyse existing scholarship, travaux préparatoires,[18] cases and texts to develop a perfectly reasonable definition of a gap, then who would it be perfectly reasonable for? In a nutshell, if the definition is not universal, then it solves nothing in terms of unifying interpretational approaches. And the definition of something as flexible as this will invariably be massively influenced by the hugely differing legal cultures of the (currently) 70 different CISG Contracting states -- so is it even possible to define a "gap" for all CISG application? The optimistic answer is yes; the adoption of a global jurisconsultorium to ensure an autonomous CISG application through the sharing of commentaries and case law will ensure a more congruent approach. But the realistic answer is more despondent, as the example below will illustrate. [page 20]

A Calculated Interest in Classifying "Gaps" -- the Article 78 CISG Example

One example of the difficulty in identifying gaps is the widely discussed interest provision in Article 78 CISG.[19] While it can be argued that Article 78 CISG was a slight on the Islamic law systems by its inclusion (disregarding the Riba or Gharar interest prohibition of the Sh'aria)[20] -- it is nevertheless a part of the Convention (and interestingly one which offers no reservation as a way of avoiding it). As a firm legal basis for awarding interest it is a matter governed by the Convention -- but does its silence on interest calculation mean that this is not governed? How far does the "matter" and "governed" term stretch here? Is this question a gap or an omission, deliberate or by oversight, from the scope of the CISG?

As there is a (more or less) established general principle of full compensation which can aid this issue, the definition of whether it is a gap or not will decide if/how a principle of full compensation is relevant or if otherwise applicable law as appointed by the private international law or conflict of laws rules of the lex fori.

The drafting history of Article 78 CISG makes it a particularly good example of the difficulties in determining whether a "gap" is inside or outside the scope of the CISG, i.e. external or internal. As explained by the drafters of the convention, they tried to find agreement on the issue of interest calculation, but:

"... had finally come to the conclusion that fundamental differences in the approach of different national legal systems to the question of interest rendered that task too difficult ... The working group had decided to recommend a provision based, as it were, on the highest [page 21] common factor, so that the Convention might at least contain a clear statement on the question of interest."[21]

As evidenced by this statement, the interest calculation was thus considered but omitted by the final CISG, which might support an argument that an omission would mean that it is outside the scope of the CISG and hence a gap outside the CISG. However, this does not adequately reflect the considerations of the latter half of this quote -- it was not deliberately omitted but included as a clear statement as an "at least" to include the question. The drafters would hence seem to be indicating that this is a gap inside the scope of the Convention, which they could simply not agree on.

Interestingly, this particular issue is one which is much discussed in theory, but reported practice shows an overwhelming majority considering the solution to be outside the scope of the CISG -- a point made, as mentioned above, by Mazzotta, who pierces this academic discussion by demonstrating that while academics debate this issue, Courts and Tribunals have long demonstrated that they favour the otherwise applicable law method.[22] This is understandable as it is much less hassle -- but regrettable as it is likely to produce non-uniform results and overlooks an important notion in CISG interpretation.

Criteria for Determining "Gaps"

While it may be true that it is impossible to develop a universally accepted definition of an internal "gap" in the CISG, and while it may be true that this will severely affect the uniform manner in which general principles of the CISG will apply, it must nevertheless be remembered that the CISG has gaps for a reason: often diplomatic stagnation, as evidenced above re Article 78 CISG, which led it to appoint a flexible solution rather than impose a certain view. It will be the individual judge or arbitrator who decides whether a gap is praeter -- or infra legem based on his/her understanding of what is right [page 22] and compatible with the legal system within which the CISG applies in the current case. So, the conclusion must be to not mind the gap, and to accept divergent applications, as this is one of the important flexibilities which lie at the heart of the CISG's accession success.

It may, however, be helpful to point out some general guidelines to assist in this determination. To classify a gap as internal, and hence subject it to the general principles, the following criteria should be applied:

WHAT IS A GENERAL PRINCIPLE?

Even if "gaps" could be perfectly determined, using the guidelines above, another significant problem with the first part of Article 7(2) CISG is that it refers to "general principles" which the CISG is based on, but nowhere in the [page 23] Convention itself or other official documents (such as the Secretariat's Commentary) are these principles actually labelled or explained.

In the introduction to the last edition of his Commentary on the CISG, Professor Schlechtriem states that:

"In my opinion, two apparently quite different areas pose greater danger to the unification so far achieved. First, where the CISG rules are not completely clear so that interpretation by way of gap filling is required, it may be uncertain whether the Convention contains general principles permitting gaps to be filled or whether reference must be made to domestic law."[25]

Filling gaps based on vague, nondescript principles which are difficult to identify and place is indeed questionable in terms of predictability and foreseeability as well as insight. Without a solid guideline for their application, or at least their identification, the use of the general principles is unlikely to become similar in any jurisdictions, but rather ways of expressing homeward trends by choice and application of general principles, as a "carte blanche" for interpretation. Moreover, universally accepted guidelines regarding the extent of the applicability of these principles is needed, as we see them extended in case law to instances outside the existence of gaps, applied as interpretive guidelines, and we see provisions extended beyond the sphere of their application through the "backdoor" of pronouncing them general principles.

The Rationale behind General Principles -- Replacing a Legal Order

The genesis and rationale behind the general principles can help in throwing light on their nature. It may seem puzzling that such controversial and vague guidelines for filling gaps have found their way into the CISG in the first place. Especially if considering that they were also present in ULIS,[26] and criticised here as well. During the drafting of the CISG, it was stated that: [page 24]

"it was difficult and dangerous to attempt to solve problems by reference to unstated general principles".[27]

A justification is offered by Ernst Rabel, arguably the principle actor of modem unification of laws, who stated the following about general principles as such:

"Since the judges applying this Statute are subject to different laws and used to their application, the greatest danger for maintaining a truly uniform legal situation lies in diverging judicial interpretations. We have to fear strongly that the courts will either consciously or subconsciously use their national law to fill gaps. Thus the desired legal uniformity would quickly fall apart. [...] However, a common basis for decision-making is absolutely indispensable. Therefore, this Article provides that cases not expressly settled in this Statute nevertheless are subject to it and thus have to be resolved in the spirit of the Statute in conformity with the principles permeating it. These principles are called principes généraux ..."[28]

Rabel's words would seem to indicate that the general principles are envisioned to produce an overarching legal interpretive methodology, or legal order, to fill any void which may be left by laws made in a globalized dimension. As substitutes for the judicial interpretations of diverging legal systems, to ensure uniformity in approach, they thus replace a legal system -- or legal order -- which would otherwise provide a normative or functional framework within which the law operates.

While this may be a comforting theoretical notion for anyone wary of transgovernmental law operating outside the traditional framework of nation-state laws, it remains a wholly impracticable replacement for a complete legal order in practice. [page 25]

Spirit of the What?

As mentioned, the "general principles" alluded to are not tangible, but can best be described as non-codified expressions of the underlying ideas which permeate the CISG. They are perhaps best described as "the spirit of the CISG".

Although the drafters might be criticized for not codifying the principles they refer to, or exemplifying them, it is easy to see why they did not. Any codification could not have been exhaustive, and might have caused more problem in a literal interpretation than they do in their absence.

In defence of the general principles, scholars and practitioners have worked on this question for over fifteen years now,[29] and the principles would seem to be those of common sense and good dealing already evidenced in some of the CISG's provisions.

Scholarship on Determining "General Principles"

As mentioned in the introduction, one of the first comprehensive attempts at explaining the principles is found in Albert Kritzer's work.[30] According to Kritzer, these general principles, reasoned by analogy of the Convention include: [page 26]

  1. providing needed co-operation,

  2. a duty to disclose material information,

  3. reasonableness, and

  4. equal treatment and respect for the different cultural, social and legal backgrounds of individual traders.

Kritzer emphasises that the list is not exhaustive, as the very nature of the principles prohibits such an exercise. He hits the notion of the principles right on the head -- they are vague because they are meant to be vague. They are flexible to accommodate concepts like public policy, fundamental justice and fair practice. While this may come at a price of non-uniform application, such is the nature of the CISG.

But this vague nature is perhaps something which the common lawyer is happier to embrace. At the danger of oversimplification and generalisation, it is a fact that the different legal families which make up the CISG States and the CISG drafting States have different approaches to law -- and hence also to general principles. With a tradition of meticulous and exact drafting and codification of laws in Germany and in-depth analytical scholarship which categorises law minutely, it is thus not surprising that one of the leading German scholars of the CISG, Professor Ulrich Magnus, takes a very different approach to the extrapolation of general principles.

Professor Magnus explores the general principles in great detail, in his thorough analysis from 1995 (translated to English in 1997),[31] where he identifies 26 different examples of general principles [32] Elsewhere in this volume, Eiselen summarises Magnus' work excellently, by referring to the "ground breaking work in identifying a number of these underlying principles for the [page 27] CISG" and the "four different ways in which these general principles can be derived from a convention".[33] Eiselen identifies

  1. expressly stated principles

  2. principles which permeate many principles and apply by extension to others

  3. principles which can be deemed general even though they only appear once

  4. principles evident through the overall context of the convention.

I wholly agree with the latter three ways of extrapolating general principles, and will not attempt to improve on Magnus' cataloguing of principles using these techniques, although I will caution against assuming that any list can be exhaustive, especially when we are dealing with a vague concept which is meant to be vague.

However, it seems to me that caution should be had in equating expressly stated principles of interpretation with general principles. There has been some confusion between the concept of interpretational guidelines, like reasonableness, good faith, uniformity and internationality, and these general principles -- but there is an important distinction between gap filling and interpretive guidelines, which we must be wary not to blur.[34]

Cases using General Principles

There is significant -- nearly prophetic -- overlapping between Professor Magnus' template for general principles and those general principles extrapolated from international case law in the UNCITRAL Digest as well.[35] The Digest identifies the following general principles as developed in case law: [page 28]

In the commentary to the draft digest, Professor Ferrari rightly points out that the formulation of a general principle before a given court or tribunal -- or, by implication, its inclusion in the Digest -- does not mean that it automatically to be recognized as such, nor that no others can exist.[36] Nevertheless, from a practical or functional analysis of the CISG after almost twenty years of applied use, it is what practitioners have chosen to make of (or not make of) the principles which would seem to be at the heart of the discussion, and represent the real embodiment of general principles in practice. From this, we can strive to obtain consensus amongst courts and tribunals on an international level, utilising the jurisconsultorium.

In the interest of creating internationally accepted general principles from the body of case law from different domestic courts, one specific question merits closer attention: To what extent is the creation of these general principles in case law an expression of an international autonomous development [page 29] of an "overarching legal order" for the CISG within which to function (as intended)? And to what extent are they glorified homeward trends?

"General Principles" -- A Good Idea Gone Wrong?

One bone of contention with the current development in case law concerns potential cases where there is no actual "gap", general principles can be perceived as a deductive "back door" to a subsumptive judicial finding -- a way of moulding the CISG to the liking of the judge/arbitrator. If Tribunals and Courts use the (currently) quite flexible and "fuzzy" concept of general principles to reach the decision which they find right, then the difficult-to-map "gaps" can become a breeding ground for one of the most unpopular aspects of commercial business: unpredictability and uncertainty.

The most obvious example is the seemingly consensual body of case law from national courts which supports the notion of "good faith" as a general principle, and not merely an interpretational tool. The UNCITRAL digest lists a case from Belgium, a case from Switzerland, a case from Italy, a case from the Netherlands, a case from .France and no less than seven cases from Germany.[37] The notion of a general principle of good faith which applies throughout the CISG as opposed to an interpretational principle to aid the understanding of a specific provision raises certain problems. In addition, it must be brought to mind that a general duty to observe good faith and fair dealing was explicitly not included in the CISG as agreement could not be reached. The reason for this lack of agreement is the resistance amongst certain jurisdictions, famously England,[38] to such a concept, as it is seen as a breeding ground for uncertainty.[39] In the light of this, it is interesting to note that all the national jurisdictions mentioned above, who have extended Good [page 30] Faith to a general principle, operate with similar notions (bonne foi, Treu und Glauben, bona fide) as general duties under their own domestic laws.[40]

Much has been written on whether or not Article 7(1) CISG and its reference to good faith can extend to such a general duty. Smuggling it in through a back-door by way of Article 7(2) CISG and elevating it to a general principle would seem to circumvent this discussion completely. Can the appointment of a "gap" truly validate it? If so, consider the uproar which would ensue if pre-contractual liability were to be classified a "gap" ...

There are other examples where serious issues arise when promoting provisions or notions of the CISG to general principles. In some cases, some courts and tribunals can be said to be stretching the application of some provisions beyond their intended scope, with potentially dire consequences. Previous writing has seen me (over)extend an example of this regarding the application of Article 40 CISG to Article 39(2) CISG, where a CIETAC case [41] and a Stockholm Arbitration case [42] both relied on general principles in the deciding of an issue which could be decided on a plain meaning interpretation of the text.[43] While I must grudgingly admit that this example is overstated, as CIETAC did not in fact refer to the direct applicability of Article 40 CISG,[44] the potential for this exists as long as the principles behind Article 40 CISG are lent the weight of a general principle.[45] Overly flexible general principles introduce a margin of appreciation to the CISG, which was not intended to be there. [page 31]

Yet another example is found in the promotion by some Courts of a "no writing requirement" as a general principle outside Article 11 CISG.[46] This creates issues relating to Article 96 CISG and reservations against this informality arises. Does this mean that in order for a ratifying State to validly reserve against such contracts, it has to expressly extend this reservation? Or can an Article 96 CISG reservation impliedly also knock out this assumption of a general principle? Even in the case of China's unusually worded declaration,[47] the technical answer would seem to be that Article 96 CISG declarations only pertain to Article 11 CISG itself. The potential problems this creates are self evident -- and bound to lead to results which Chinese courts could arguably overturn for reasons of public policy (if the declaration were not unfounded).[48] This is certainly not desirable in any way.

CONCLUSION

The idea of creating a possibility of recourse to general principles as a means of trying to ensure a more uniform approach in the absence of a fixed normative or theoretical framework does have a certain appeal at face value. But, in reality, it is a poor substitute for an overarching legal framework.

In the harsh light of hindsight, these general principles, however nobly envisioned, can be said to be misplaced, as they have proven more trouble than they have solved. They do not present a practitioner with a given set of [page 32] rules for interpretation -- they allow him or her choice at a buffet of flexible options, to pick that most suited to his/her own interpretational technique and apply it as a (poorly) disguised homeward trend.

Even despite the thorough cataloguing in recent scholarship, there is little support in case law to indicate that general principles can help to promote similarity in results as they were intended to do. On the contrary, they can be said to promote non-uniformity because they allow too much flexibility in the application of the CISG.

The only way for general principles to ever promote uniformity is if the careful outlining of methods for extrapolating and applying general principles is continued in the jurisconsultorium of the CISG. This requires consensus on the clarification of internal "gaps" , the detailed cataloguing of principles, and the clarification of how the principles should be used. The emphasis here is on consensus -- it must all be based on an autonomy of approach amongst the courts and tribunals which formulate and develop the principles. Whether this is realistically attainable is a separate issue,[49] and a doubtful one at that.

On the other hand, there is a current practical function of the principles, one which may be argued to be a valuable one despite this unintentional effect. Where they represent a non-uniform option they also represent a bid for individual fairness, which accommodates concepts of justice and policy before the Courts which apply them. In the classic struggle between predictability/some rigidity on one side, and individual fairness/some uncertainty on the other, the general principles are now clearly batting for the latter team.

This means that while they might originally have represented a uniform approach, they are now more non-uniform. For better or worse; until the jurisconsultorium can develop a better way forward. [page 33]


FOOTNOTES

* Lecturer in International Commercial Law, University of Leicester; Fellow of the Institute of International Commercial Law, Pace University (New York), founding Co-Editor of The Journal of Comparative Law.

1. This specific mountain is an irresistible metaphor for this topic. Allegedly, the K2 mountain, the second highest in the world rising 28,251 feet, has proven more difficult to scale than its neighbour Everest -- with less than 10% success as compared to Everest. The reason is, again allegedly as I am only a metaphorical mountaineer, that there are many bottlenecks where scaling is near impossible because most of the mountain is invisible from certain points, it has the deepest fissures and gaps to span, and -- frighteningly -- has claimed the most female lives of any mountain. Thankfully, a failed academic mountaineering attempt can at most endanger my ego, and not my life.

2. Schlechtriem, P and Schwenzer, I (eds) (2005) Commentary on the Convention on Contracts for the International Sale of Goods Oxford University Press at p 5.

3. Kritzer, A (1989) A Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods Kluwer at 79-84.

4. Peoples, L (2006) 'Strategies and Sources for International Legal Research' (60) Q. Rep.: Conf. on Consumer Fin. L. 412, 422 states that it is "considered to be one of if not the most authoritative text on the CISG" -- thank you to Marie Newman for drawing this to my attention.

5. Aside from Kritzer supra fn 3, noteworthy contributions in the field include: Gebauer, M (2000) 'Uniform Law, general principles and autonomous interpretation' Uniform Law Review 683-705; Himmen, T (2007) Die Lückenfüllung anhand allgemeiner Grundsätze im UN-Kaufrecht Sellier; Koneru, P (1997) 'The International Interpretation of the UN Convention on Contracts for the International Sale of Goods: An Approach Based on General Principles' (6) Minnesota Journal of Global Trade 105-152; Magnus, U (1995) 'Die Allgemeinen Grundsätze im UN-Kaufrecht' Rabels Zeitschrift fur ausländisches und internationales Privatrecht 469-494, translated in Magnus, U (1997) 'The General Principles of UN-Sales Law' (3) International Trade and Business Law Annual, Australia 33-56, available at: <http://www.cisg.law.pace.edu/cisg/biblio/magnus.html>; Colligan, A (2002) 'Applying the General Principles of the United Nations Convention on Contracts for the International Sale of Goods to Fill the Article 78 Interest Rate Gap in Zapata Hermanos, S.A. v. Hearthside Baking Co. Inc.' (6) Vindobona Journal of International Commercial Law and Arbitration 40-56; Ferrari, F (1997) 'General Principles and International Uniform Commercial Law Conventions: A Study of the 1980 Vienna Sales Convention and the 1988 UNIDROIT [Factoring and Leasing] Conventions' Uniform Law Review 451-473; and key commentaries in Schlechtriem & Schwenzer Commentary supra fn 2, Honnold, J (1999) Uniform Law for International Sales Under the J 980 United Nations Convention (3rd ed) Kluwer, available at: <http://www.cisg.law.pace.edu/cisg/biblio/honnold.html>, Enderlein, F and Maskow, D (1992) International Sales Law: United Nations Convention on Contracts for the International Sale of Goods; Convention on the Limitation Period in the International Sale of Goods Oceana, available at: <http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html>; Ferrari, F (2004) 'Interpretation of the Convention and gap-filling: Article 7' in Brand, R, Flechtner H and Ferrari, F (eds) The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention Sellier.

6. The term "gap" does not appear in the CISG, but has become synonymous with the phenomenon described below. The term "gap-filling" is used by UNCITRAL in The UNCITRAL Thesaurus outlining problems of the CISG (AICN.9/SER.C/GUIDE/1 English 12 September 1995) and can thus be considered as close to a CISG term as possible without actually being in the CISG itself.

7. Part IV of the CISG does not immediately address itself to Courts, but to the public international law aspects of the CISG's application. The notion that gap-filling is relevant for Part IV of the CISG is interesting -- see Schroeter, UG (2004) 'The Status of Hong Kong and Macao under the United Nations Convention on Contracts for the International Sale of Goods' (16) Pace International Law Review 307 at 323-324 -- but best left alone for now. See also Schroeter, UG (2008) 'Backbone or Backyard of the Convention? The CISG's Final Provisions' in this book at p 425.

8. See Garro, A (1989) 'Reconciliation of Legal Traditions in the U.N. Convention on Contracts for the International Sale of Goods' (23) International Lawyer 443-483, and for a comprehensive overview of the drafting and the genesis of the convention and its provisions, key excerpts of the Working Group papers from UNCITRAL are catalogued in Honnold, J (1989) Documentary History of the Uniform Law for International Sales. The Studies, Deliberations and Decisions that led to the 1980 United Nations Convention with Introductions and Explanations, Kluwer.

9. Garro, A (1995) 'The Gap-Filing Role of the UNIDROIT Principles in International Sales Law' (69) Tulane Law Review 1149 at 1156.

10. In his award-winning article on the subject of interest calculation, see Mazzotta, F (2004) 'CISG Article 78: Endless disagreement among commentators, much less among the courts' Review of the Convention on Contracts for the International Sale of Goods at 123-161, also available at: <http://www.cisg.law.pace.edu/cisg/biblio/mazzotta78.html>.

11. Most noteably the relationship of the CISG with other instruments of law and the notion of a transnational global jurisconsultorium in sharing scholarship and case law. For the former, see re UNIDROIT, PECL generally Felemegas, J (ed) (2007) Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law Cambridge University Press. Regarding the Jurisconsultorium of the CISG, see Andersen, CB (2007) Uniform Application of the International Sales Law -Understanding Uniformity, the Global Jurisconsultorium and Examination and Notification Provisions of the CISG Kluwer; Andersen, CB (2005) 'The Uniform International Sales Law and the Global Jurisconsultorium' (24) Journal of Law and Commerce 159-179

12. This submision will not dwell on the concept of uniform application or its relationship with gaps or general principles. For more on uniform application of law in general, see Andersen, CB (2007) 'Defining Uniformity in Law' Uniform Law Review Vol XII, p 5-55. For information on the uniformity of the CISG specifically, see (amongst many others): Ferrari, F (2008) 'Ruminations on the Uniformity of the CISG' in this book at p 134; Andersen Uniform Application supra fn 11.

13. On the importance of uniformity through use of general principles and congruent interpretation "within the four corners of the CISG" see Zeller, B (2003) 'Four- Corners -The Methodology for Interpretation and Application of the UN Convention on Contracts for the International Sale of Goods', available at: <http://www.cisg.law.pace.edu/cisg/biblio/4corners.html>.

14. McMahon, A (2006) 'Differentiating between Internal and External Gaps in the U.N. Convention on Contracts for the International Sale of Goods: A Proposed Method for Determining "Governed by" in the Context of Article 7(2)' (44) Columbia Journal of Transnational Law 992-1032.

15. See however Gebauer, who seems to use this definition of gaps, Gebauer 'Uniform Law' supra fn 5 at 695-696. A similar interpretation on the nature of "gaps" can also arguably be inferred from Zeller 'Four Comers' supra fn 11.

16. One example which springs to mind is the reluctance of English law to embrace a concept of "good faith", referenced below.

17. McMahon 'Differentiating between Internal and External Gaps' supra fn 14 at 1003.

18. In this indulgent fantasy I will happily overlook the fact that including travaux in the analysis carries a host of problems with it, as not all CISG states are happy to include travaux as sources of law with the same degree of importance. For a more substantial consideration of this particular problem, see Andersen CB (1998) 'Reasonable Time in Article 39(1) of the CISG -- Is Article 39(1) Truly a Uniform Provision?' Review of the Convention on Contracts for the International Sale of Goods (CISG) 63-176 at fn 12, available at: <http://www.cisg.law.pace.edu/cisg/biblio/andersen.html>.

19. See Zoccolillo, A (1997) 'Determination of the Interest Rate under the United Nations Convention on Contracts for the International Sale of Goods: General Principles vs. National Law' (1) Vindobona Journal of International Commercial Law and Arbitration 3-43; Colligan ' Applying the General Principles' supra fn 5; and Mazzotta 'CISG Article 78' supra fn 10.

20. This issues raised by Islamic finance and the difficulties this presents in Muslim majority jurisdictions using the CISG are not raised in this article. For more on Islamic Finance in general and the interest prohibition, see Saleh, N (1992) Unlawful Gain and Legitimate Profit in Islamic Law --Riba, gharar and Islamic banking (2nd ed) Graham & Trotman.

21. See Summary Records of the Plenary Meetings, 11th Plenary Meeting, April 10, 1980, at 3 p.m., available at: <http://cisgw3.law.pace.edu/cisg/plenarycommittee/summary11.html>.

22. See Mazzotta supra fn 10. In his analysis of 265 cases concerning the interpretation of Article 78 CISG, Mazotta points out that which many scholars have lost sight of in this discussion; namely there is a general agreement among courts not to use the general principles in the determination.

23. The problems arising from divergent classifications of attorneys' fees abound in the (in)famous Zapata case(s), see Flechtner, H and Lookofsky, J (2003) 'Viva Zapata! American Procedure and CISG Substance in a U.S. Circuit Court of Appeal' (7) Vindobona Journal of International Commercial Law and Arbitration 93-104 vs Felemegas, J (2002) 'The [U.S. District Court] award of counsel fees under Article 74 CISG, in Zapata Hermanos Sucesores v. Hearthside Baking Co.' (6) Vindobona Journal of International Commercial Law and Arbitration 30-39.

24. The varying role of academic scholarship in the different legal traditions of the CISG states naturally affects this criteria, as do all elements of legal culture which influence concepts of justice and public policy.

25. Schlechtriem in Schlechtriem & Schwenzer Commentary supra fn 2 at p. 7. The other issue he identifies is that of classification, mentioned above.

26. Convention relating to a Uniform Law on the International Sale of Goods (ULIS), the antecedent to the CISG, available at: <http://www.cisg.law.pace.edu/cisg/text/ulis.html>.

27. UNCITRAL Working Group on International Sale of Goods (1971) Report of Work of Second Session, U.N. Doc. A/CN.9/52 at 62 para. 134.

28. Rabel, E (1935) 'Der Entwurf eines einheitlichen Kaufgesetzes' (9) Rabels Zeitschrift 1 at 54, translated by Lisa Haberfellner in Magnus 'General Principles' supra fn 5.

29. For information on the general principles, see, amongst many others: Hellner, J (2000) 'The Law of Sales and the Law of Contract: Some Remarks on the United Nations Convention on International Sales' Julskrift 173-185 and (1990) 'Gap-Filling by Analogy: Article 7 of the UN Sales Convention in its Historical Context' in Ramberg, J (ed) Studies in International Law: Festkrift til Lars Hjerner Norstedts p 219-233; Shael Herman (1981) 'Quot judices tot sententiae: A study of the English reaction to continental interpretive techniques' (1) Legal Studies 165-189; Koneru 'The International Interpretation' supra fn 5; Magnus 'General Principles' supra fn 5; Nickles (1980) 'Problems of Sources of Law Under the UCC' (31) Arkansas Law Review at 16-46; Brandner, G (1999), Admissibility of Analogy in Gap-Filling under the CISG', available at: <http://cisgw3.law.pace.edu/cisg/biblio/brandner.html>; Povrzenic, N (1997) 'Interpretation and Gap-Filling under the United Nations Convention on Contacts for the International Sale of Goods', available at: <http://www.cisg.law.pace.edu/cisg/text/gap-fill.html>

30. Kritzer A Guide to Practical Applications supra fn 3 at 79-84.

31. See Magnus 'General Principles' supra fn 5.

32. These are: (1) Party autonomy, (2) Pacta sunt servanda, (3) Good faith, (4) Reliance protection, (5) Standard of reasonableness, (6) Forfeiture, (7) Prevalence of usage, (8) Lack of form requirements, (9) Favor contractus, (10) Duty to avoid damages, (11) General duty to cooperate, (12) Duty to pay damages, (13) Concurrent performance, (14) Set-off of claims arising under the Convention, (15) Retention right, (16) Passing of risk only in case of identification of the goods to the contract, (17) Passing of encumbrances and fruits with passing of risk, (18) Calculation of time limits, (19) Theory of dispatch (20) Theory of receipt, (21) Maturity without request, (22) Imputation of third party conduct and knowledge, (23) Currency, (24) Place of performance for payment claims, (25) Interest [not rate], (26) Burden of proof.

33. Eiselen, S (2008) 'The purpose, scope and underlying principles of the UNECIC' in this book from p 106, at p 115.

34. For more on this, see Andersen Uniform Application supra fn 11 at 204-207.

35. See the Digest of Article 7 regarding gap-filling, available at: <http://www.cisg.law.pace.edu/cisg/text/digest-art-07.html#gapfilling> drafted by Franco Ferrari. The draft Digest is also available in Brand, Flechtner and Ferrari The Draft UNCITRAL Digest and Beyond supra fn 5 at 538-545.

36. See Ferrari in Brand, Flechtner and Ferrari The Draft UNCITRAL Digest and Beyond supra fn 5 at 160.

37. See UNCITRAL Digest supra fn 35 at fn 19.

38. Consider Bingham LJ Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1988] I All ER 348 at 352-353: 'In many civil law systems ... the law of obligations recognises and enforces an overriding principle that in making and carrying out contracts parties should act in good faith ... English law has, characteristically, committed itself to no such overriding principle but has developed piecemeal solutions in response to demonstrated problems of unfairness.

39. See Honnold Uniform Law supra fn 5 at 99 on the evolution of the good faith provision: 'Others resisted this step on the ground that "fair dealing" and "good faith" had no fixed meaning and would lead to uncertainty.'

40. For example, Germany operates with two well known doctrines for good faith: 242 BGB (Good faith requirement for contracting) and 157 BGB (good faith interpretation). Italy operates with three separate rules of law in the civil code: Article 1337 (Good faith in contract negotiation and drafting), Article 1366 (Good faith in contract interpretation) and Article 1375 (Good faith in contract performance).

41. CIETAC Arbitration proceeding (China), 30 March 1999 (Flanges case), available at: <http://cisgw3.law.pace.edu/cases/990330c2.html>,

42. Stockholm Chamber of Commerce (Arbitration Award), 5 June 1998 (Beijing Light Automobile Co. v. Connell), available at: <http://cisgw3.law.pace.edu/cases/980605s5.html>

43. See Andersen Uniform Application supra fn 11 at 204-207.

44. I am grateful to Professor Eiselen for his continued dialogue on this and for the detailed full text translation of the case at the CISGW3 database which provided further insight.

45. Aside from the Stockholm case supra fn 41, see also Oberlandesgericht Köln (Germany), 21 May 1996, available at: <http://cisgw3.law.pace.edu/cases/960521g1.html>.

46. Arbitration Award (Mexico), 29 April 1996 (Compromex), available at: <http://cisgw3.law.pace.edu/cases/960429m1.html>; Oberster Gerichtshof (Austria), 29 June 1999, available at: <http://cisgw3.law.pace.edu/cases/990629a3.html> Oberster Gerichtshof (Austria), 6 February 1996, available at: <http://cisgw3.law.pace.edu/cases/960206a3.html>.

47. The arrival of this general principle has meant that China's unusually worded declaration under Article 96 CISG may entail an actual difference as opposed to other Article 96 declarations. Cf Wang, X and Andersen, CB (2004) 'The Chinese Declaration against Oral Contracts under the CISG' (8) Vindobona Journal of International Commercial Law and Arbitration 145. In relation to Article 11 CISG itself, the declaration does not represent a substantial difference to other Article 96 CISG reservations -- but it may more easily be considered to extend to all aspects of oral contracting and amendments, invalidating this specific general principle.

48. The prerequisite for the Chinese declaration -- a domestic system requiring contracts in writing -- has changed with the 1999 Uniform Contract Law, see Wang and Andersen 'Chinese Declaration' ibid.

49. The role of the UNIDROIT Principles of International Commercial Contracts in this capacity is gaining a stronger foothold, see the prolific writings of Michael Joachim Bonell on the subject, most recently 'Towards a Legislative Codification of the UNIDROIT Principles?' in this book at p 62. It is worth noting that Ferrari now also seems to accept analogical applications of other legal principles in gap-filling, see Brand, Flechtner and Ferrari The Draft UNCITRAL Digest and Beyond supra fn 5 at 160 with fn 124.


Pace Law School Institute of International Commercial Law - Last updated February 12, 2009
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