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Update of presentation in 13 Vindobona Journal of International Commercial Law and Arbitration (2009) 64-70. Reproduced with permission of the Vindobona Journal.

Practical Jurisconsultorium Cases by Country

Camilla Andersen [16 April 2010]

The cases set out below represent my "collection" of decisions where the practical jurisconsultorium has been used. This list does not purport to be complete, due to limitations in case translations and reporting, and human error. The author welcomes additions, and asks that they be sent to her at <Camilla.Andersen@le.ac.uk>

Court Cases

America

1.    Federal Appellate Court [11th Circuit] (MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino) 29 June 1998, available at: <http://cisgw3.law.pace.edu/cases/980629u1.html>

Although the Court does not cite foreign case law, it clearly searched for it: "the parties have not cited us to any persuasive authority from the courts of other States Party to the CISG. Our own research uncovered a promising source for such decisions at <http://www.cisg.law.pace.edu>, but produced no cases that address the issue of parol evidence."(n 14).

2.    Federal District Court [Louisiana] (Medical Marketing v. Internazionale Medico Scientifica) 17 May 1999, available at: <http://cisgw3.law.pace.edu/cases/990517u1.html>

Citing a German Supreme Court decision as authority for the proposition that Article 35 CISG does not require the seller to supply goods that conform to laws and regulations in effect in the buyer's country.

3.    Federal District Court [Illinois] (Usinor Industeel v. Leeco Steel Products) 28 March 2002 available at: <http://cisgw3.law.pace.edu/cases/020328u1.html>

Citing an Australian case to support reference to domestic law in a CISG case when the issue is the validity of a retention of title clause.

4.    US District Court (Chicago Prime Packers, Inc. v. Northam Food Trading Co., et al) 21 May 2004, available at: <http://cisgw3.law.pace.edu/cases/040521u1.html>

Citing cases from Italy, Germany and the Netherlands (as well as international scholarship) in its analysis of conformity of goods and burden of proof. This decision was affirmed in Federal Court 7th Circuit (23 May 2005, at http://cisgw3.law.pace.edu/cases/050523u1.html) but sadly without mention of foreign precedent or scholarship.

5.    Federal District Court [Georgia] (Innotex Precision Limited v. Horei Image Produdts, Inc., et al.) 17 December 2009, available at: > http://cisgw3.law.pace.edu/cases/091217u1.html

Citing a French case and several Chinese cases on the question of whether Hong Kong is a CISG contracting state.

Australia

1.    Supreme Court of Queensland (Downs Investments v. Perwaja Steel), 17 November 2000 available at: <http://cisgw3.law.pace.edu/cases/001117a2.html>

Citing US authority as support for the proposition that failure to open a timely letter of credit is a fundamental breach under Article 25 and Article 64(1)(a) of the CISG.

2.    Supreme Court of Queensland, Court of Appeal (Downs Investments v Perwaja Steel), 12 October 2001 (affirming case above), available at: <http://cisgw3.law.pace.edu/cases/011012a2.html>

Citing reported and unreported American CISG authority for damage calculation and the interpretation of Article 75 CISG.

3.    Federal Court [South Australia District] (Hannaford v Australian Farmlink Pty Ltd) 24 October 2008, available at: <http://cisgw3.law.pace.edu/cases/081024a2.html>

Citing French case law as support for the CISG's non-applicability in Hong Kong.

Denmark

1.    Copenhagen Maritime Commercial Court (Sergueev Handelsagentur v. DAT-SCHAUB A/S), 31 January 2002, available at: <http://cisgw3.law.pace.edu/cases/020131d1.html>

Although the Court does not cite a foreign case directly in its reasoning, it supports the position of the counsel for seller who relied on a Dutch case about the extent of the buyer's examination duty under Article 38 (this case is reproduced in the judgement). The Court was clearly persuaded by the Dutch case.

France

1.    CA Grenoble, (Scea. Gaec des Beauches B. Bruno v. Société Teso Ten Elsen GmbH & Co KG) France 23 Oct. 1996, available at: <http://cisgw3.law.pace.edu/cases/961023f1.html>

The Court cites a German case in support of the principle that payment is fulfilled at the place of business of the creditor, and that this is the place of performance.

Germany

1.    Supreme Court [Bundesgerichtshof] (Vine Wax Case), 24 Mar. 1999, available at: <http://cisgw3.law.pace.edu/cases/990324g1.html>

The Court does not refer international case law on Article 79, but does cite the views of scholars from France, Germany, England, Switzerland, and the United States to reach a properly international view.

2.    District Court Trier, (Synthetic Window Parts Case), 8 Jan. 2004, available at: <http://cisgw3.law.pace.edu/cases/040108g1.html>

Citing a US case in support of the proposition that it is a "generally accepted opinion" that the question of whether standard terms are incorporated into the contract is to be determined according to Articles 14-24 CISG.

3.    Supreme Court [Bundesgerichtshof] (Paprika Case), 30 June 2004, available at: <http://cisgw3.law.pace.edu/cases/040630g1.html>

Citing cases from the ICC and Stockholm arbitration institutes, the Netherlands and Canada in examining burden of proof within the framework of Article 40 CISG.

4.    Higher District Court Stuttgart, (Automobile Case), 31 March 2008, available at: <http://cisgw3.law.pace.edu/cases/080331g1.html>

Cites cases from Denmark, Finland and the Netherlands in analysing the time period for notifying of intention to avoid the contract.

Italy

1.    Trib. Civile of Cuneo, 31 Jan 1996 (Sport d'Hiver di Genevieve Culet v. Ets. Louys et Fils), available at: <http://cisgw3.law.pace.edu/cases/960131i3.html>

The very first reported case to refer to foreign CISG precedents; citing Swiss and German cases in analysing "reasonable time" under Article 39 CISG.

2.    District Court Pavia (Tessile v. Ixela), 29 December 1999, available at: <http://cisgw3.law.pace.edu/cases/991229i3.html>

Refers to a Swiss case in answering the question of an interest rate, stating that the foreign case "although not binding, is however to be taken into consideration as required".

3.    District Court of Vigevano, (Rheinland Versicherungen v. Atlarex), 12 July 2000 available at: <http://cisgw3.law.pace.edu/cases/000712i3.html>

Citing cases from America, Austria, the Netherlands, France, Germany, and Switzerland, as well as arbitral awards from the ICC, in determining issues on the applicability of the CISG and the timeliness of notice.

4.    District Court of Rimini, (Al Palazzo S.r.l. v. Bernardaud di Limoges S.A.), 26 Nov. 2002, available at: <http://cisgw3.law.pace.edu/cases/021126i3.html>

Citing cases from Austria, Belgium, France, Germany, Hungary, Netherlands, Switzerland, and America in deciding issues of scope and interpretation, as well as examination and notification under the CISG.

5.    District Court of Padova, (Pizza Boxes Case), 31 March 2004, available at: <http://cisgw3.law.pace.edu/cases/040331i3.html>

Citing cases from Switzerland, Germany, France, Austria and arbitral awards from the ICC in support of various CISG issues of validity, payment and interest.

6.    District Court of Padova, (Agricultural Products Case), 25 Feb. 2004, available at: <http://cisgw3.law.pace.edu/cases/040225i3.html>

Citing cases from Austria, Switzerland, Germany, France, and ICC arbitration in deciding issues on payment and scope.

7.    District Court Padova (Ostroznik Savo v. La Faraona soc. coop. a.r.l.) 11 January 2005, available at: <http://cisgw3.law.pace.edu/cases/050111i3.html>

Citing cases from France and Germany on issues of scope of the CISG and fundamentality of breach, noting that foreign jurisprudence "has to be taken into account".

8.    District Court Padova (Merry-go-rounds Case), 10 January 2006 available at: <http://cisgw3.law.pace.edu/cases/060110i3.html>

This case uses the CISG as a benchmark for defining a contract for the sale of goods, and refers to cases from Germany, America, Switzerland and Belgium to substantiate the nature of the CISG. It also cites a German CISG case in connection with the issue of jurisdiction in connection with the Brussels Convention.

9.    District Court of Forli, 11 December 2008, (Mitias v. Solidea S.r.l.) available at: <http://cisgw3.law.pace.edu/cases/081211i3.html>

Citing many cases from Switzerland, Austria, Germany, France and the Netherlands on a variety of issues connected with application of the CISG and Conformity of goods, notification and remedies. In this case, foreign precedents are used directly as authority.

10.   District Court of Forli, (Cisterns and accessories case), 16 February 2009,available at: <http://cisgw3.law.pace.edu/cases/090216i3.html>

Cites numerous cases from Spain, Switzerland, France, Germany, Belgium, Austria and the Netherlands on issues concerning application of the CISG, time of delivery, conformity of goods and notification. Again, foreign precedents are used directly as authority.

The Netherlands

1.    Supreme Court (B.V.B.A. Vergo Kwekerijen v. Defendant), 28 January 2005, available at: <http://cisgw3.law.pace.edu/cases/050128n1.html>

The Supreme Court refers to the UNCITRAL Digest, but not to a specific case, in determining the nature of a gap under the CISG. It also refers to the scholarship of Professor Ferrari.

2.    Supreme Court (Isocab France S.A. v. Indus Projektbouw B.V.), 4 Feb. 2005, available at: <http://cisgw3.law.pace.edu/cases/050204n1.html>

Although the Court does refer to a Belgian case from Kortrijk concerning a question of notification of non-conformity, the Belgian case directly related to the dispute at hand. There is a nice utilisation of the scholarly jurisconsultorium, however, in the use of the Secretariat's Commentary, the CISG W3 database, and Professor Sono's contribution in the Bianca & Bonell Commentary.

Serbia

1.    Foreign Trade Court attached to the Serbian Chamber of Commerce (Mineral Water and Wooden Pallets Case), 13 November 2007, available at: <http://cisgw3.law.pace.edu/cases/071113sb.html>

Refers to a German case in deciding that the CISG does not apply to distribution contracts.

2.    Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce (Milk Packaging Equipment Case), 15 July 2008, available at: <http://cisgw3.law.pace.edu/cases/080715sb.html>

Cites an Australian case in deciding the scope and application of the CISG.

3.    Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce (Medicaments Case), 28 January 2009, available at: <http://cisgw3.law.pace.edu/cases/090128sb.html>

Refers to German, Russian, Hungarian and Austrian cases in its analysis of CISG issues relating to application and scope of the CISG, as well as interest rates.

Spain

1.    Audiencia Provincial de Valencia,(Cherubino Valsangiacomo, S.A. v. American Juice Import Inc) 7 June 2003, available at: <http://cisgw3.law.pace.edu/cases/030607s4.html>

In citing cases from the Netherlands and Germany on the issue of reasonable time under Article 39 CISG, the court stated that "the only way to assure uniformity of interpretation of the Convention is to take into account that which other tribunals have held when applying the Convention."

Switzerland

1.    Higher District Court Kanton Luzern, (Blood Infusion Devices Case), 8 Jan. 1997, available at: <http://cisgw3.law.pace.edu/cases/970108s1.html>

Although the CLOUT abstract (CLOUT 92) indicates that this case analyses foreign case law, this is not true, and this case should - strictly speaking - not be included here. Para 4(e) of the judgement is a direct paraphrasing of Schwenzer's reasoning for the noble month in the original German Schlechtriem Commentary. There is no actual foreign precedent used in this case; nevertheless, the proper use of a scholar who has done her comparative groundwork is the next-best thing.

2.    Supreme Court [Bundesgericht], 13 Nov. 2001, available at: <http://cisgw3.law.pace.edu/cases/031113s1.html>

Citing cases from Germany and Belgium to support the position that acceptance under Article. 60(b) CISG means 'the physical taking over of the goods'.

Poland

1.    Supreme Court of Poland (Shoe Leather Case), 11 May 2007, available at: <http://cisgw3.law.pace.edu/cases/070511p1.html>

Citing an Austrian Supreme Court case as authority for the right to withhold performance under Article 71 CISG.

Practical Jurisconsultorium Cases from Arbitration Venues

Below is a small collection of arbitral awards where the arbitrator(s) cite a range of trans-national case law. Of course, in arbitration everything is "international", as the venue is theoretically stateless, so only those where case law from more than one state has been cited have been included. Note that because the vast majority of arbitral awards are confidential and private, it is impossible to know how many more cases like these exist. It is also worth noting that some Arbitral Tribunals, such as CIETAC in China, prohibit reference to cases in their awards - this does not prohibit international reasoning, as many of the excellent Chinese cases show.

American Arbitration Association

1.    Macromex Srl. v. Globex International Inc., 23 October 2007, available at: <http://cisgw3.law.pace.edu/cases/071023a5.html>

Refers to cases from Germany, Hungary and Bulgaria in analysing exemption for liability under Article 79 CISG, but note that it also - wrongly - applies the UCC by analogy in attempting to interpret the CISG with "outside sources". (Final award 12 Dec 2007, award confirmed in Federal District Court [New York], 16 April 2008 available at: <http://cisgw3.law.pace.edu/cases/080416u1.html> - Court further elaborates the UCC mistake, but does not refer to foreign case law).

ICC ARBITRATION

1.    Case No. 11333 of 2002 (Machine Case) available at: <http://cisgw3.law.pace.edu/cases/021333i1.html>

Cites a 1998 German Supreme Court decision in determining that a reference to national law in a choice of law clause does not exclude the CISG, rejecting older French and Italian cases as well as a Swiss arbitral decision, which find otherwise.

CIETAC (China)

1.    Arbitration Award of September 2004 (Steel products case) available at: <http://cisgw3.law.pace.edu/cases/021333i1.html>

Counsel in their pleading and the CIETAC tribunal cite arbitral and court case law (including CISG decisions by an ICC tribunal and a German Court as well as judicial non-CISG decisions from Australia and England). Moreover, for one of the issues that remained to be resolved in this proceeding (an issue involving Article 76 of the CISG), the Tribunal solicited further case law citations, stating: "It is noted that Respondent receives its instructions from Switzerland and has the assistance of Swiss lawyers. It should not be a difficult task for Respondent to refer to and provide English translations of any Continental or other decision on Article 76 of CISG, their Swiss lawyers should be able to research this and assist the Arbitral Tribunal by researching and referring to judgments of European courts on the meaning of Article 76 "

Stockholm Chamber of Commerce

1.    Arbitration Award of 5 April 2007 (Pressure Sensors Case) available at: <http://cisgw3.law.pace.edu/cases/070405s5.html>

Cites Swiss and German Supreme Court cases in support of a narrow construction of fundamental breach under Article 25 CISG.


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